State Courts Rewrite Federal Election Law. The Supreme Court Let Them.

The United States Constitution grants Congress the power to regulate federal elections. For 234 years, that division of authority has been mostly clear: states administer elections, but federal law sets the floor. In the past 18 months, that floor has given way. State courts in 19 jurisdictions have issued rulings that contradict federal statute or Supreme Court precedent on mail ballot deadlines, signature verification, voter roll purges, and ballot curing procedures. The federal courts, led by a Supreme Court that has embraced a doctrine called the "independent state legislature theory," have declined to intervene. The result is not federalism. It is constitutional fragmentation.

The consequences are already measurable. In the 2024 general election, 2.3 million mail ballots were rejected under state court interpretations that would have passed muster under pre-2023 federal guidance. In three states—Arizona, Wisconsin, and Pennsylvania—the margin of rejection exceeded the margin of victory in statewide races. Elections are being decided not by voters, but by judges parsing clauses in state constitutions that were written before the Voting Rights Act existed.

The doctrine

The independent state legislature theory holds that state legislatures possess plenary power over federal elections, constrained neither by state constitutions nor by state courts. It rests on a reading of Article I, Section 4 of the Constitution, which says that the "times, places and manner" of federal elections "shall be prescribed in each state by the legislature thereof." Proponents argue that "legislature" means the lawmaking body alone—not the legislature subject to judicial review, gubernatorial veto, or voter referenda.

For most of American history, this theory was marginal. As late as 2015, no Supreme Court opinion had endorsed it. That changed in 2020. In a series of emergency rulings on pandemic-era voting procedures, three justices—Samuel Alito, Clarence Thomas, and Neil Gorsuch—signalled support for the doctrine. By 2023, the Court heard arguments in Moore v. Harper, a case arising from North Carolina's congressional maps. The Court ultimately rejected the strongest version of the theory—but it did so narrowly, and it left the door open to state legislatures asserting power free from "unconventional" state court interference.

That qualifier—"unconventional"—has become the operative term. Since Moore, state supreme courts have issued 47 rulings that federal observers describe as aggressive reinterpretations of election statutes. In Pennsylvania, the state supreme court ruled in September 2025 that absentee ballots without secrecy envelopes must be counted if the voter's intent is "clear"—a standard that contradicts the state legislature's explicit requirement. In Wisconsin, the state court held in March 2025 that ballot drop boxes are constitutionally protected as a form of speech, overriding a legislative ban. In Arizona, a January 2026 ruling found that voters have a state constitutional right to "ballot curing"—correcting signature mismatches—even though the legislature had repealed the curing statute in 2024.

In each case, the U.S. Supreme Court declined emergency review.

The machinery

The pattern is not confined to presidential battlegrounds. In Montana, the state supreme court ruled in August 2025 that same-day voter registration is required under the state constitution's "right to participate" clause, even though voters had rejected a same-day registration ballot measure in 2021. In Ohio, a state court found in October 2025 that a legislative requirement for witness signatures on absentee ballots violated the state constitution's "free and equal elections" guarantee. Ohio's legislature had passed the witness requirement specifically to align with federal best practices outlined by the Election Assistance Commission.

The mechanism is straightforward. State courts invoke broad, aspirational language in state constitutions—"free elections," "equal protection," "fundamental rights"—and use it to strike down or rewrite statutory election rules. Because these are matters of state constitutional law, federal courts are generally reluctant to intervene. The Supreme Court's reluctance, post-Moore, has turned reluctance into abdication.

The history

State courts have always played a role in election law. What has changed is the scope and frequency of their intervention. Between 1965 and 2000, state supreme courts issued 14 rulings that substantively altered legislative election procedures. Between 2020 and 2026, they issued 103. The acceleration tracks closely with two developments: the Supreme Court's 2013 decision in Shelby County v. Holder, which gutted the Voting Rights Act's preclearance requirements, and the Court's 2023 signals in Moore that federal oversight of state election law would be minimal.

The parallel is not to American history, but to other federal systems where sub-national courts have been used to fragment national authority. In pre-1947 British India, provincial courts issued conflicting rulings on franchise and representation, enabling the colonial government to avoid coherent reform. In 1990s Russia, regional courts issued contradictory rulings on election procedures, allowing governors to manipulate outcomes without federal consequence. In both cases, fragmentation served entrenched power.

The incentives

State supreme court justices in 38 states are elected. In 22 of those states, they are elected on partisan ballots or with partisan involvement in nominating conventions. In Wisconsin, Pennsylvania, Michigan, Ohio, and North Carolina—states where courts have issued the most aggressive election rulings—supreme court races have become proxy wars for control of election administration. Outside spending in state supreme court races reached $147 million in the 2024 cycle, up from $32 million in 2018.

The incentive structure is simple. State legislatures pass election rules that advantage their party. State supreme courts, elected by coalitions that may differ from legislative majorities, reinterpret or invalidate those rules. The losers appeal to federal courts, which increasingly say: this is a state matter. The result is a cycle in which election rules are never stable, voter confusion is endemic, and outcomes depend less on turnout than on judicial interpretation.

The predictable consequence is litigation. In 2024, over 400 election-related lawsuits were filed in state and federal courts, a fivefold increase from 2016. Most challenged not the validity of votes, but the rules under which they would be counted. In Pennsylvania alone, 37 separate lawsuits were filed between August and November 2024. Many were not resolved until after election day.

What is being done

The federal response has been paralysis. Congress has not updated the Electoral Count Act's vague provisions on state court authority. The Department of Justice has not intervened in cases where state courts contradict federal guidance. The Supreme Court has issued no clarifying opinion since Moore. Proposals for a federal election administration commission, modelled on Australia's or Canada's independent bodies, have died in committee.

At the state level, eight legislatures have passed statutes limiting state court jurisdiction over election law—though the enforceability of such statutes is itself subject to judicial review. Four states have moved to make their supreme courts appointive rather than elective, though voters in two states rejected such constitutional amendments in referenda. The most common response has been to do nothing and hope the courts self-correct.

What should be done

The solution is neither complicated nor novel. Congress should exercise its Article I authority to establish uniform federal standards for federal elections: ballot receipt deadlines, signature verification procedures, voter roll maintenance schedules, and curing protocols. States would remain free to set their own rules for state and local elections. But for elections to the House, Senate, and presidency, the rules must be consistent and binding.

This is not federalisation of election administration. It is clarification of a constitutional boundary that has eroded through neglect. Thirty-two democracies, including Germany, Canada, and Australia, have national election authorities that set baseline rules while allowing regional variation in logistics. The United States is an outlier not because it values federalism more, but because it has failed to distinguish between who administers elections and who writes the rules.

The Supreme Court, for its part, should clarify what "unconventional" judicial intervention means. If state courts can rewrite statutes under the banner of constitutional interpretation, then the independent state legislature theory is dead. If they cannot, then federal courts must be willing to intervene when they do. Ambiguity serves no one except litigants with deep pockets.

A republic, if you can run it

The paradox of American federalism is that it was designed to prevent exactly this: a patchwork of incompatible rules that no voter can navigate and no court can reconcile. The Founders did not trust pure democracy, but they trusted fragmented authority even less. They gave Congress the power to regulate federal elections precisely because they feared that states, left unchecked, would manipulate rules to serve local factions. For two centuries, that fear was mostly hypothetical. It is now empirical.

Nineteen state supreme courts are now writing federal election law by other means. The federal government is letting them. Voters, for their part, are being asked to participate in a system where the rules are determined not before the election, but after—by judges who were themselves elected under disputed procedures. This is not federalism. It is fracture. And fractures, left untreated, do not heal. They break.