The Constitution gives us a road map to restoring trust in our elections

State legislatures need to reassert their constitutional authority over elections — and that means state legislators need to take the time to understand the central role they play in managing federal elections.

The Constitution makes it very clear that state legislatures are intended to oversee federal elections within their jurisdictions. Indeed, the language used by the founders strongly suggests that they saw the state legislatures’ authority over elections as plenary.

Article 1, Section 4, clause 1 of the Constitution reads: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

The meaning of this text has become a subject of debate lately, with many opinions offered about the so-called “independent state legislature” theory, especially in light of the Supreme Court’s decision in favor of Republican lawmakers in North Carolina who sought authority to defend a state voter ID law in court.

Shortly after issuing that decision, the court agreed to take another case involving the North Carolina legislature’s authority to manage elections. In that case, lawmakers are appealing a state Supreme Court decision rejecting their congressional maps, arguing that the Constitution gives them, not their state courts, the exclusive authority to determine “the Times, Places, and Manner of holding Elections for Senators and Representatives.”

Several justices have offered indications that they support the independent state legislature theory, and the North Carolina case could offer them an opportunity to enshrine that interpretation of the Constitution as Supreme Court precedent.

Many would say that’s just common sense and that the state legislature’s authority is unquestioned unless it is exercised in a manner that conflicts with other federal constitutional provisions. Some would even go so far as to ask why the plain meaning of the Constitution on this matter could ever be a matter of serious debate. Opponents argue that when the founders gave authority over federal elections to the state legislatures, they were really granting that authority to state governments as a whole. Hence, governors presume the power to veto voting legislation, and state courts presume the power to overturn voting laws that they deem to be in conflict with the state’s constitution.

But the founders were nothing if not precise in their use of language. Elsewhere in the very same document, the authors of the Constitution very clearly distinguished between the legislature, executive, and judicial branches of state government. It seems highly unlikely that they would have assigned power over elections to the state “legislatures” if, in fact, they had meant to assign that power to the state “governments” as a whole, given how easily they could have made their meaning clear and unambiguous had that truly been their intent.

Unfortunately, state legislatures themselves have seemingly become accustomed to yielding their constitutional authority to the other branches of state government, particularly the executive branch. In Georgia, for instance, consent decrees entered into by Secretary of State Brad Raffensperger drastically reshaped the state’s election processes in the 2020 election. The legislature, despite having already passed laws establishing contrary processes, was given no say in the new rules created by Raffensperger and the courts.

Similarly, legislatures have, for the most part, tamely accepted that their election laws are subject to the governor’s veto, just like other laws. In Michigan, Pennsylvania, and other states, Democratic governors have vetoed election integrity legislation passed by Republican lawmakers, generating outrage but no real action.

In large part, the impotence of state legislatures is a product of their own failure to assert themselves. In most states, the legislature is not even in session between Election Day and Inauguration Day, creating a major obstacle to lawmakers taking action even in the event of clear irregularities in the voting process.

This effectively leaves elections unmanaged and unreviewable. The government branch with the political authority to manage the elections has separated itself from the exercise of that authority, leaving election management often to unelected and politically unaccountable government officials. Separating operational authority from political accountability is a formula for bad government.

That’s why the American Voter’s Alliance has created model legislation that will empower state legislatures to reclaim their proper, constitutional role of establishing the “time, place, and manner” of elections. The model legislation creates bipartisan election oversight committees, expands transparency requirements to the U.S. Postal Service, requires voter-marked paper ballots, creates penalties for ballot larceny, requires equal treatment of voters and ballots, and prohibits private monies from being used in government election offices.

Our model legislation ensures that American elections will be transparent, inclusive, and accountable: the same standards that the U.S. Agency for International Development expects of other countries around the world.

Election experts, including former Ohio Secretary of State Ken Blackwell and Lori Roman, the president of American Constitutional Rights Union Action Fund, have endorsed AVA’s model legislation, hailing it as a bipartisan road map to restoring public faith in our election process.

Unless and until state legislatures reassert their constitutional authority over elections, our elections will continue to be plagued by confusion and mistrust. The first step is for state legislators to educate themselves about the incredibly important role they are supposed to play in making sure that our elections are safe, secure, and trustworthy.

Jacqueline Timmer is the founder and director of the American Voter’s Alliance, a nonprofit grassroots voter education group focused on election integrity.