Destabilizing speculation

While Moore v. Harper takes shape, broad coalition takes on independent state legislature theory

As the briefing draws to a close, battle lines emerge in Moore v. Harper – the case in which the Supreme Court will consider whether to adopt some form of the Independent State Legislature (ISL) theory. As a reminder, the ISL theory holds that state legislatures can regulate federal elections without any oversight by other actors at the state level. Thus, according to the theory, no state constitutional provision, no state court, and potentially no governor’s veto could restrict a state legislature’s exercise of power over federal elections.

In Moore v. Harper, members of the North Carolina State Legislature (the petitioners) invoke the ISL theory to claim that the North Carolina state courts violated the federal constitution when they found maps of Congress drawn by the legislature to violate the state constitution. The respondents include the state of North Carolina, as well as individual voters and nonpartisan voting rights and democracy organizations that have filed lawsuits in state courts challenging the maps. Few major Supreme Court cases in recent memory have seen such a broad coalition of all political persuasions come together on one side – in this case, versus the theory of the independent state legislature.

Now that the briefs (more than 40) have mostly been filed — petitioners will likely file a response in the coming weeks — three key themes are worth watching as the case heads to oral argument on Dec. 7. (As a point of disclosure, I have represented Professor Evan Bernicka specialist in originalism, in a memorandum supporting the respondents.)

Conservatives are lining up to urge the Court to reject the ISL theory.

Since the Supreme Court took up the case in June, the respondents have added the revered conservative justice to the appeals court’s retirement J. Michael Luttig to their team of lawyers. Luttig, once shortlisted for a Supreme Court seat by George W. Bush’s White House, mentored many members of the conservative legal elite as jurists, including Senator Ted Cruz, the US Solicitor General. Trump era, Noel Francisco, FBI Director Christopher Wray and John. Eastman.

Now that the amicus briefs have arrived, the respondents have the support of several retired four-star military officers, two co-founders of the Federalist Society, several retired conservative appeals court judges, a longtime Republican attorney, a Reagan-era solicitor general, several former Republican secretaries of state, several former Republican governors, civil rights and good government groups, as well as a choir highly respected and ideologically diverse historians and jurists. And the Chief Justices Conferencerepresenting the 50 justices of the Supreme Court of the Statesfiled a brief outright rejecting the idea that state courts and constitutions cannot control state legislatures when they regulate federal elections.

Support petitioners? John Eastman, a slew of ringside think tanks, and a handful of red state attorneys general and other state lawmakers, none of whom oversee the election. No historian, jurist, or election official has come forward to support the ISL theory.

Despite extremely polarized politics in the United States, the large number of conservatives joining liberals and nonpartisan groups in rejecting the theory shouldn’t be so surprising here. Defending checks and balances is nonpartisan: An unconstrained state legislature could benefit Republicans in Ohio and unseat them in New York. Or it might help the Democrats in 2022, but not in 2032. As this broad coalition of amici recognizes, the checks and balances enshrined in federal and state constitutions protect the people from abuse of power, however the political wind blows in a given moment.

Amici of all political persuasions confirm the devastating consequences of adopting the ISL theory on US elections.

In their opening brief, the petitioners largely avoided the sweeping consequences of the ISL theory for the electoral system, instead calling the theory mandated by law, whatever the consequences. Respondents, on the other hand, explained that the theory would disrupt election administration in three ways. First, as the petitioners agree, it would undo some or all of the state constitutional provisions for federal elections, radically altering the rules governing elections, no matter how strong or old. Second, he would only do so to federal elections, creating a two-tier system of election administration that would be nearly impossible for either officials or voters to manage. And, third, it would inject massive uncertainty into the remaining powers, if any, of the courts and state executives regarding federal elections. Confirming that respondents’ arguments are neither unwarranted anxiety nor academic speculation, amici with real-world electoral and judicial experience from all political backgrounds echoed those same concerns.

On the first point, impartiality Brennan Center for Justice detailed how the ISL theory would nullify or undermine hundreds state constitutional provisions and related court rulings and would threaten a host of election rules enacted through ballot initiatives. Totally Agree, Prominent Republican Election Advocate Ben Ginsberg called the petitioners’ ISL theory a “potential disaster of voter confusion” and a waste of money for election officials, as they would struggle to determine which rules were and were not yet valid. And like Ginsberga number of Former Republican elected officials and executive branch officials and several memoirs of bipartisan groups of election administratorswarned, the ISL theory would usher in a two-track system of election law and make “state and federal elections virtually impossible to administer.”

Several amicus briefs, including a brief on behalf of nearly a dozen prominent Conservatives – including several former elected officials and retired DC Circuit Judge Thomas Griffith and Bush-era acting attorney general Peter Keisler (also co-founder of the Federalist Society) – and the memoir of Chief Justices Conference, agreed and all warned that adopting the ISL theory would lead to a flood of potentially destabilizing election litigation in federal courts. Giving federal courts the final say on the meaning of state election law potentially turns any matter of election-related statutory interpretation into a federal lawsuit. Transferring as much power from state actors to federal courts presents, under the terms of the Chief Justice of the Supreme Court of Texas“the biggest federalism problem for a long time”.

In short, the ISL theory, if adopted, would create this Ginsberg called a “toxic brew of uncertainty, distrust, partisanship and unchecked power” that could lead to a number of electoral “nightmare scenarios”. And these “nightmare scenarios”, a group of retirees four-star admirals and generals and former service secretaries explained, could be devastating to national security.

The historical debate over the ISL theory looms large in the Court, but is settled (and dismissed) within the academy.

All parties agree that the ratifying public’s understanding of the Election Clause will be the leading legal issue in this case. That is, after all, how a majority of this Supreme Court purports to interpret the Constitution.

So how does the ISL theory square with the original understanding of the election clause? As Vikram Amar, Akhil Amar and Stephen CalabriaI (a co-founder of the Federalist Society) said it in their striking memoir: “Miserably.” Echoing what I and others have written elsewhere in the popular press, leading academic historians and constitutional law scholars all told the same thing in court: Evidence from the Foundation era clearly shows that state legislatures are bound by their state constitutions when regulating federal elections. Indeed, early state constitutions were littered with provisions regulating federal elections, which were meant to be enforceable in state courts.

The applicants had neither law professors nor historians in their ranks as amici. Instead, in their own brief, they relied heavily on a document called the “Pinckney Plan”, which purports to be an early draft of the Constitution. This draft, they argue, shows that the framers of the Constitution explicitly rejected a plan that would assign power to the “states” and instead gave it to the “legislatures” – reinforcing their claim that the legislature must therefore have a single power. and unlimited in this area.

But, as both the respondents and the amici have shown, the Pinckney plan is a fraudulent document, forged by Charles Pinckney to enlarge his role in drafting the Constitution. In the words of amici Amar, the best proof of the ISL theory is a “false document”. To be clear, the petitioners and others before them presumably relied in good faith on the Pinckney plan. But the fact that they, too, were duped shows the value of only deciding on complex and consequential matters after a full briefing and the involvement of amicus. As the Amars and Calabresi say: “The petitioners are not expert historians – alas, not even competent historians. . . . Appropriate originalism is serious business and the Court needs to hear from serious scholars.

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The emergence of the theory of the independent state legislature largely took place in an emergency situation. This means that in previous cases neither the courts nor the public have had time for the parties – not to mention historians and jurists, election administrators and elected officials – to comment on the historical basis or effect of removing essential controls. and burdens state legislatures when acting in the most partisan arenas. In this hugely important case, in a highly polarized environment, pundits from all sides and partisan affiliations have now weighed in much the same answer: Giving state legislatures unchecked power over federal elections is both antithetical and dangerous to the American constitutional order.

IMAGE: Voters fill out and vote at the White Oak Community Recreation Center early voting location on October 27, 2022 in Silver Spring, Maryland. Including this location in Silver Spring, Montgomery County opened 14 early voting sites Thursday that will remain open through Nov. 3. (Photo by Chip Somodevilla/Getty Images)