We're Tom Wolf,Eliza Sweren-Becker, and Ethan Herenstein. We work on democracy reform at the Brennan Center for Justice. Ask us anything about the Supreme Court’s upcoming case Moore v. Harper and the “independent state legislature” theory.

If you could pinpoint a moment in political history that led to this being treated as a serious threat to democracy rather than a fringe theory that no one really ever thought would come to pass, what would it be?

Where's the branch in the timeline that got us here?

The ISLT emerged as a serious threat to democracy once a few Justices of the Supreme Court began issuing writings suggesting their openness to, at the very least, considering it.

During the 2020 elections, litigants seeking to keep then-President Trump in office deployed the ISLT in cases designed to change which votes counted (for example, trying to invalidate certain mailed ballots). The Court rejected all those challenges. That could have been the end of the road for the ISLT. But a few Justices in concurrences, dissents, etc. suggested there might be something there.

Other litigants around the country picked up the signal. For example, in this case, the gerrymanderers have been trying to use the ISLT to defend their gerrymanders.

Because of this dynamic, it’s very important that a majority of the Court send a strong message in this case that the ISLT isn’t valid.

– Tom

Say this does pass the Supreme Court - what recourse would we have from a legislative perspective? Would it require a constitutional amendment? Federal laws being passed?

How could we hypothetically come back from this?

Eliza: The very provision of the U.S. Constitution that North Carolina legislators are trying to weaponize in this case–the Elections Clause–also gives Congress the power to act to ensure free, fair, and representative elections. Namely, the Elections Clause gives Congress the power to “make or alter” rules for federal elections. The Framers gave Congress that overriding power precisely because they were worried that state lawmakers would abuse their authority over federal elections and do things like draw unfair maps and make voting more difficult (sound familiar?).

Congress should–regardless of the outcome in Moore v. Harper–pass democracy reform legislation to protect the right to vote, fight back against racist voter suppression tactics, eliminate partisan gerrymandering, and protect against election sabotage and interference efforts. The Freedom to Vote: John R. Lewis Act would have put these policies in place, and Congress should reintroduce and pass this bill, which would mitigate some of the worst harms of the independent state legislature theory (if the Court does adopt it).

Who exactly are Moore and Harper and how exactly did this case become one that could upend all elections. What is the issue at hand here?

Tim Moore is the Speaker of the North Carolina House of Representatives. Rebecca Harper is a voter in North Carolina. Last year, North Carolina’s Republican-dominated state legislature—led by Moore—passed, on a party-line vote, an extreme partisan gerrymander to lock in a supermajority of the state’s 14 congressional seats. Harper, along with other voters and non-profit groups, successfully contested the map in state court, contending that the map violated the state constitution’s “free elections clause,” among other provisions. But Moore wasn’t willing to accept the state court’s ruling, so he asked the U.S. Supreme Court to get involved. Before the U.S. Supreme Court, Moore has invoked the so-called “independent state legislature theory,” the dangerous theory that state legislatures have near exclusive power to set the rules for federal elections.

The ISLT would have catastrophic effects for our elections if it became the law of the land. It would kneecap the state-level movement to end partisan gerrymandering. But it could also endanger the right to a secret ballot in many state constitutions, the right to cast an absentee ballot in at least sixteen states, ranked-choice voting regimes in Alaska and Maine, automatic voter registration in Michigan and Nevada, and on and on. In all, the theory could upend more than 170 constitutional provisions and more than 650 state statutes that protect your right to vote and make sure that elections are free and fair. That’s a recipe to upend elections if there ever were one. -- Ethan

You've mentioned in a lot of responses how things justices care about- history, text, originalism, etc-means there's a mountain of evidence that ISLT is wrong. But do you have any evidence that the Supreme Court actually cares about any of those things and instead uses those as a cover to be partisan hacks? And that they wouldn't hesitate to throw those things out the window to continue to be partisan hacks?

At the end of the day, even if the justices want to embrace the ISLT, they’re going to have to write an opinion explaining why. Considering that the kind of reasoning they’d use--text, history, tradition, precedent--cuts against the theory, they would have an awfully tough time writing that opinion. (In fact, one of the major pieces of history that the supporters of the ISLT try to invoke–the so-called Pinckney Plan–is fraudulent!) That puts any of the justices interested in the ISLT in a tough spot–-and it makes it more likely that a majority will form to reject the theory. -- Ethan

Thanks for doing this AMA about such an important case that the media just isn't covering enough! What, in your view, are the number-one strongest arguments for each side of this case?

The gerrymanderers who are asking SCOTUS to embrace the ISLT rely mainly on the fact that when the Constitution assigns the power to regulate federal elections, it gives that power to the “legislatures” of each state (subject to the power of Congress to override these rules). Seizing on the word “legislature,” proponents of the theory insist that state legislatures don’t just get to make the rules, but that they can ignore their state constitutions when doing so!

The problems with the ISLT are endless. For one thing, American elections have never been run this way. It’s a totally made-up theory. Since the founding era, state legislatures have regulated federal elections, subject to all the normal checks and balances that are the hallmark of our democracy–with governors having the chance to veto bad laws, with state courts having the chance to strike down unconstitutional laws, and with election officials being tasked with administering them. The ISLT totally ignores that history.

Other problems with the ISLT: It violates the basic norms and assumptions about how government should work at the time the Constitution was written. It conflicts with hundreds of years of Supreme Court precedent. It defies common sense (how could a state legislature make laws that violate the very state constitution that created it?) It disregards the text of the Constitution (the Constitution gives lots of power to Congress, for example, but no one would ever argue that Congress is free to make unconstitutional laws!) And it’s a recipe for election chaos.

It’s not really a close call, which is why constitutional experts–on both sides of the aisle–have called on the Supreme Court to reject this dangerous theory.

-Ethan

Then going by their actions so far, this supreme court is almost guaranteed to rule in favor of ISLT. What recourse do we have at that point?

This is far from a done-deal for the ISLT. As Eliza and Tom mentioned in other replies, all of the stuff that this Supreme Court purports to care about–history, originalism, text–all cut sharply against the ISLT. Here’s one data point: Tons of leading academic historians have come out against the ISLT; not a single historian has tried to defend the theory. Combine that with all of the other reasons to reject the theory–e.g., it’s undemocratic and dangerous–and the anti-ISLT side has a very strong hand.

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--Ethan

What is the actual worst case scenario in your opinion. It seems like some people think This will only effect state elections, while others are claiming this will end democracy. Where is the truth?

To start, it’s important to remember that the independent state legislature theory relates to federal elections–i.e., elections for congress, senate, and the presidency.

If the Supreme Court rules for the gerrymanderers in Moore v. Harper, it would be a huge blow to efforts to stop partisan gerrymandering in congressional elections. A few years back, the Supreme Court (in a terrible decision) ruled that federal courts aren’t allowed to stop partisan gerrymandering, but the Court–unanimously!--promised that state courts could step in to fill the void. If the Supreme Court were to turn around and announce that, actually, state courts can’t get involved either, that would mean that state legislatures can gerrymander congressional maps to benefit their party–and no court would be able to stop them. That’s a disaster for fair elections.

Other potential consequences of the independent state legislature theory: state constitutional provisions that protect your right to vote–like those that guarantee your right to cast an absentee ballot, those that establish automatic voter registration, and even long-standing provisions that guarantee fair elections or equal protection of the law–could all become inapplicable to federal elections.

At the same time, because the theory only applies to federal elections, that could mean that these provisions would still apply to state elections, creating a “two-track” election system, where different rules apply to state and federal elections, that would be confusing for voters and election administrators alike.

This is just some of the chaos that the ISLT will introduce into our elections system, and it’s pretty frightening.

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--Ethan

What are your predictions for the final ruling (e.g. 5v4 for, 7-2 against, etc)? How confident are you?

Until I gain the power to read minds, I won’t make predictions!

That said, any Supreme Court Justice who tries to write a credible opinion supporting the ISLT is going to struggle mightily to deliver. Under any metric a Justice would use to figure out the right answer in this case–original public meaning, constitutional text, structure, historical practice, precedent, policy, etc.--the answer is: “The ISLT is wrong.”

The ISLT has been able to motor along up to this point because the Court’s been fielding it on its emergency appeals docket (the shadow docket), where there’s basically no context for its decision-making (few briefs, no argument, etc.) and there’s little to no public scrutiny of what they’re up to.

The game’s different now: The Court’s gotten thousands of pages of briefs dropped on it, covering every conceivable angle of the issue. (We summarized them all here: https://www.brennancenter.org/our-work/court-cases/annotated-guide-amicus-briefs-moore-v-harper.)) Folks are paying attention to it now. And the Court has experienced significant blowback for its recent opinions on abortion rights and gun control. All these things will put real limits on the Court's room to go the wrong way here.

In short, this case is a winnable one for the anti-ISLT side. - Tom

What is the most important point to take away from Moore v Harper?
What is the likelihood of additional attempts to use ISLT if it is struck down by the Supreme Court in a similar manner to the cases that led to Roe v Wade being overturned?
Additionally, what has been your favorite case you’ve worked on and or the most significant case?

The most important point to take away from Moore is that the independent state legislature theory is wrong as a matter of text, history, practice, and precedent; the theory, if adopted, would remove critical checks and balances on state legislatures in a way that will create chaos in our elections and could thwart your vote.

A rejection of the ISLT by the Supreme Court should largely stem the tide of litigants seeking to push the issue. The clearer and more unequivocal the Court’s repudiation of the theory, the less likely we are to see actors trying to advance the theory in other contexts in lower courts.

Speaking only for myself, my favorite case to have worked on was a challenge to Florida’s pay-to-vote system for people with felony convictions. We won after an 8-day trial in federal district court, but unfortunately the Eleventh Circuit Court of Appeals reversed. That hasn’t stopped me or the Brennan Center from continuing to fight for returning citizens in Florida!

- Eliza

Co-sign Eliza on the importance of checks and balances. I'd rather have that than the ISLT's completely awful proposed system where state legislators alone decide what the rules for federal elections look like, so I'm against the ISLT.

My favorite case was a lawsuit we launched in 2020 to stop the Trump administration from shutting the census down early. Made me proud to be able to be a public interest attorney. -- Tom

Hello. Do you think that with some election results coming many days after the election is over will give voters less confidence about the elections?

Election officials should count every vote, even if that means we may not know the results until a few days after Election Day. Voters knowing that they will cast ballots that count should give them confidence in the results. - Eliza

Do you believe that Roberts can convince one of the (more) crazies to flip to the side of democracy?

ESB: The remarkable thing about the independent state legislature theory is how crystal clear history and tradition cut against the theory. Mountains of historical evidence—from the Framers’ intent to limit the power of state legislatures when they drafted the Elections Clause, to the state constitutional constraints that existed at the time of founding as checks and balances on state legislatures, to the existence of state court judicial review at that time—all of it should lead to the rejection of the ISLT. The originalist case against the ISLT is a slam dunk. And with so many justices purporting to use originalism to interpret the Constitution, the short answer is yes, I believe there is a majority of the court that could and should reject petitioners’ arguments.

And that’s before we get into any of the many other strong arguments against the ISLT.