Campaign Legal Center filed a friend-of-the-court brief in Moore v. Harper, which the Supreme Court will hear on December 7. The Supreme Court is being asked to consider the fringe Independent State Legislature theory, which could give state legislatures nearly unchecked power to set the rules for federal elections – with grave consequences for election law, the freedom to vote and the health of our democracy.
“Checks and balances are a cornerstone of our democracy and help make sure no one person, party or legislative body can abuse their power. If adopted, the independent state legislature would eliminate the role of state courts to serve as a check on politicians who would otherwise gerrymander congressional districts and write election rules that undermine the freedom to vote,” said Paul Smith, senior vice president of Campaign Legal Center. “We urge the Supreme Court to uphold our system of checks and balances and preserve the role state courts and state constitutions play in facilitating a transparent, inclusive and accountable democracy.”
Moore v. Harper is centered on a gerrymandered congressional map in North Carolina. In 2021, North Carolina legislators crafted a congressional map that gave their own political party an unfair advantage in elections.
North Carolina voters took the map to state court and won in the North Carolina Supreme Court. However, the state legislature was unhappy with the outcome and asked the U.S. Supreme Court to take up the case based on a fringe legal concept known as the “independent state legislature theory.”
If the Supreme Court adopts the theory, politicians will have nearly unchecked power to pass undemocratic laws that thwart the will of voters by making it harder to vote. It could also open the door to unrestricted partisan gerrymandering, which allows politicians to manipulate election outcomes by choosing their own voters instead of the other way around. State courts would be powerless to stop them.
Since the independent state legislature theory suggests politicians are the only state actors with the power to draw voting maps, the theory also puts the fate of independent redistricting commissions across the country in jeopardy.
The independent state legislature theory could also throw our elections into chaos by invalidating election rules that voters passed through ballot initiatives and other avenues, such as expanded vote-by-mail or ranked choice voting. States could be forced to create completely different rules for state and federal elections, which would make elections even more confusing for voters.
Campaign Legal Center’s friend-of-the court brief outlines how dangerous the independent state legislature theory is to our democracy and encourages the Supreme Court to preserve the role state courts and independent redistricting commissions play in facilitating a transparent, inclusive and accountable democracy.
CLC’s brief is joined by a diverse group of democracy reform, public policy, and faith-based organizations whose missions include ensuring that the democratic process is free and fair for all voters. The organizations joining the CLC brief are Democracy 21, End Citizens United//Let America Vote Action Fund, National Council of Jewish Women, Inc., OneVirginia2021, RepresentUs, Republican Women for Progress, Unitarian Universalists for Social Justice, and Voters Not Politicians.