TheBrennanCenter

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).

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

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

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

Congress has the power to create “senior judges,” and that includes “senior justices.” This framework has been in place for more than a century and justices have done this since 1937. David Souter, for example, left SCOTUS years ago but still sometimes hears federal cases. Under the plan we advocate, Congress would create a schedule by which justices assume senior status automatically after 18 years of active service on the Court.