The U.S. Supreme Court will hear oral arguments in Moore v. Harper this December, where the court will consider a fringe legal theory that could give state legislatures nearly unchecked power to set the rules for federal elections – with potentially disastrous consequences for election law, the freedom to vote and the health of our democracy....
At a Glance
Campaign Legal Center is urging the U.S. Supreme Court to reject the dangerous and fringe Independent State Legislature (ISL) theory. This extremist legal theory would give state legislatures nearly unchecked power to set the rules for federal elections, handing politicians a license to ignore their own state constitutions and state courts when drawing congressional districts and writing voting laws.Back to top
About this Case
On December 7, 2022, the U.S. Supreme Court is scheduled to hear argument in Moore v. Harper, one of the most important democracy-related cases on the Court’s docket in recent years. This case concerns whether state legislatures should be allowed to set the rules of federal congressional elections while ignoring important protections in their own state constitutions.
This view of state legislative power would open the door to unrestricted partisan gerrymandering and allow politicians to thwart the will of voters by making it harder to vote.
In 2021, the North Carolina Legislature drew a heavily partisan gerrymandered map that allowed state politicians to pick their own voters and manipulate election outcomes, guaranteeing one party would control 10 out of 14 congressional seats.
The map was struck down by the North Carolina Supreme Court for violating parts of the North Carolina Constitution that ban partisan gerrymandering. Unhappy with that decision, the North Carolina Legislature appealed to the U.S. Supreme Court, asking the Court to adopt an extremist legal concept known as the “independent state legislature” (ISL) theory.
The dangerous ISL theory is based on an obscure reading of the U.S. Constitution’s Elections Clause. If adopted, the theory would give state legislatures a license to write the rules for congressional elections without being checked by state constitutional protections that are currently enforced by state courts. \
The ISL theory is at odds with the U.S. Constitution’s text and two centuries of understanding that state legislatures cannot operate beyond the scope of their state constitutional powers or go unchecked by their state courts.
CLC’s Amicus Brief
CLC has submitted a friend-of-the-court brief that explains how a decision in favor of the North Carolina Legislature could enable further partisan gerrymandering and exacerbate political polarization and dysfunction.
CLC’s brief argues first that partisan gerrymandering is undemocratic and violates voters’ fundamental rights, which the U.S. Supreme Court has acknowledged multiple times.
While the U.S. Supreme Court ruled that partisan gerrymandering claims cannot be challenged in federal court, the Court has stressed that these claims can still be challenged in state court for violating state constitutions. If adopted, the ISL theory would eliminate this avenue – one of the last remaining options for voters to challenge unfair voting maps.
The ISL theory also threatens independent redistricting commissions (IRCs), which are independent bodies, usually citizen-led, that draw voting maps to ensure impartiality. IRCs have consistently proven to be our best tool to prevent partisan gerrymandering.
These protections against partisan gerrymandering are necessary because as state legislatures have become increasingly driven by national politics and entrenched politicians, voters cannot depend on state legislatures or Congress to limit or address partisan gerrymandering.
Third, unchecked partisan gerrymandering will exacerbate polarization and political extremism. Allowing increasingly partisan state legislatures—influenced by national partisan actors with strong incentives to maintain the partisan gerrymandering that keeps them in power—to operate effectively unchecked by state constitutions or state courts will further contribute to political dysfunction, deeply harming American representative 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.
What’s At Stake
The Supreme Court’s embrace of this theory would allow state legislatures to engage in partisan gerrymandering without being checked by state courts, put independent redistricting commissions at risk and allow state legislatures to pass anti-voter laws that violate state constitutions, without recourse in state court.
If adopted, the independent state legislature theory could also eliminate election rules for congressional elections that were put in place through ballot initiatives, state constitutions, and administrative regulations. Ultimately, it would contribute to a downward spiral of political polarization and weakening of American representative democracy.