State Executive Branches under Moore V. Harper

The independent state legislature theory (ISLT), if embraced by the U.S. Supreme Court, could have radically altered the relationship between the federal and state governments. Under the most radical version of ISLT, the reference in the Elections Clause of the U.S. Constitution to “Legislatures” gives state legislatures near-exclusive authority to regulate federal elections. The Court largely—but not totally—rejected ISLT in Moore v. Harper, but it also embraced the idea that state judiciaries could not “arrogate to themselves the power vested in state legislatures to regulate federal elections.” How Moore will be applied to state judicial decisions that interpret state constitutions to require different electoral processes, or to guarantee to voters different rights and protections, is unclear—and will likely be fleshed out in the next decade. Yet an unanswered question from Moore is whether, and how, its decision applies to state executive branches, too. There may be good reason to think that it does. If the Court is concerned with intrusions into state legislative power, it’s possible that executives might be able to do that just as easily as judiciaries could. However, in this Essay, I argue that the simplistic framework laid out in Moore is unhelpful in identifying how such disputes would be resolved, and that any alleged conflicts between state executive action and the U.S. Constitution’s delegation to state legislatures are wrought with difficulty. State executive branches radically differ from the executive branch established by the Constitution, and if the Court were to import federal assumptions about separated powers into the Elections Clause context, it would override nearly two hundred and fifty years of independent state constitutional development. Accordingly, to the extent that Moore applies in these contexts at all, I argue that the Court ought to exercise significant deference to state-specific practices, customs, and constitutional histories.