ICYMI: There is Significant and Growing Bipartisan Opposition to the Independent State Legislature Theory
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Jena Doyle
doyle@redistrictingfoundation.org
ICYMI: There is Significant and Growing Bipartisan Opposition to the Independent State Legislature Theory
Washington, D.C. — Leading conservative voices are joining the chorus of legal scholars and democracy advocates in amicus briefs submitted to the Supreme Court of the United States in Moore v. Harper, a case in which the National Redistricting Foundation is supporting the Harper Respondents. Collectively, the amicus briefs warn that the appeal brought by North Carolina Republican legislators asking the nation’s highest Court to give state legislatures almost unchecked power over federal elections, including congressional redistricting, could have devastating consequences for American democracy.
In addition to a number of conservatives, the United States Department of Justice and a group of current and former election administrators also submitted briefs opposing the Republicans’ argument in the case, which is based on the fringe, right-wing independent state legislature (ISL) theory. A total of 48 briefs filed in support of the Harper Respondents underscores the fact that there is substantial and growing bipartisan opposition to the theory.
In case you missed it, here are highlights from the amicus brief submissions:
“If this Court adopts petitioners’ . . . overreading of the Elections Clause, waves of federal court election litigation would become endemic.” – Judge Thomas B. Griffith, Former Senator John Danforth of Missouri, and Former Republican Administration Officials
ISL deprives states of “any ability to enact meaningful checks and balances on congressional redistricting to prevent harmful gerrymanders that prioritize partisan advantage or incumbent protection.” – Arnold Schwarzenegger, Republican Former Governor of California
“It is difficult to imagine a regime that more completely transfers authority from the states to the federal government.” .… “It is hardly likely that the Framers would have meant to cast aside such fundamental principles of American republicanism through the bald reference to ‘the Legislature’ in the Elections Clause; in Justice Scalia’s famous formulation, they would not have hidden an elephant in a mousehole.” – Charles Fried, Christine Todd Whitman, Christopher Shays, Mickey Edwards, and other Republican Former Elected and Executive Branch Officials
“If the American people lose faith in [a] core tenet of our democratic system, it places our entire system of governing and sense of ourselves as a country in peril.” .… “Even though the ISL theory directly regulates only federal elections, it will also promote voter confusion in state elections and provide litigators for candidates and parties a blunt instrument with which to bludgeon the judicial system.” – Benjamin Ginsberg, Republican Election Lawyer
“This basic starting point – that state legislatures were creatures of state constitutions, creatures whose very existence and shape derived from state constitutions – suffices to defeat ISL.” – Steven G. Calabresi, Co-Chairman of the Board of Directors of the Federalist Society, and Professors Akhil Amar & Vikram Amar
“Validating the role of state courts and state constitutions in the congressional redistricting process enhances the legitimacy of the electoral process and strengthens our democracy.” – Bipartisan Group of Former Public Officials, Former Judges, and Election Experts From Pennsylvania
“Text, historical context, longstanding practice, and this Court’s precedent all establish that the [Elections] Clause does not thereby authorize legislatures to ignore the state constitutions that created them.” – The United States Department of Justice
“A broad ISL ruling would weaponize election law, generating new litigation leading up to, during, and in the aftermath of closely contested federal elections.” – Current and Former Election Administrators
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