The American Bar Association filed an amicus brief on Oct. 26 with the U.S. Supreme Court, expressing a “dire” warning that a legal theory giving state legislatures unfettered authority to set rules for federal elections “would undermine the rule-of-law constraints that protect the integrity of federal elections, and that, in turn, would pose a severe threat to republican democracy.”
October 31, 2022 Top Legal News of the Week
ABA asks Supreme Court to reject arcane election law theory
The case is one of the most closely watched in the current U.S. Supreme Court term. At issue is whether a state court may overturn state legislative action regarding federal elections where the court concludes that action violates the state constitution.
A group of Republican North Carolina legislators are challenging their state Supreme Court ruling, which rejected the so-called “independent state legislature theory.” Citing the theory, the legislators maintain that because the Elections Clause of the U.S. Constitution grants state “legislature(s)” the power to set the rules for federal elections, the state judiciary may not constrain the actions of the state legislature regarding federal elections.
The ABA brief, which asks the U.S. Supreme Court to affirm the North Carolina justices’ decision, warned that the petitioners’ theory would effectively give state legislatures “absolute power over federal elections, gut the rule of law by prohibiting state courts from enforcing state constitutions’ regulations of those elections and undermine electoral integrity.”
The brief maintains that the independent state legislature theory is “irreconcilable” with both the desire of the framers of the U.S. Constitution to “limit legislative power” and their “aspiration for ‘a government of laws and not of men.’”
Coming in the wake of the contentious 2020 presidential election, the case has rekindled debate over how much power state legislatures have in making rules overseeing federal elections. Without taking a position on how the U.S. Supreme Court should decide the case, the Conference of Chief Justices, the national group representing the court of last resort for each state, district and territory, filed its own amicus brief, arguing that the Election Clause does not preempt state constitutional provisions that allow state courts to review elections.
The U.S. Supreme Court has set oral arguments in the case for Dec. 7.
Related links:
- ABA amicus brief in Moore v. Harper
- Selected blogs related to Moore v. Harper
- Recent ABA amicus briefs and background on the amicus process
- ABA Journal coverage of independent state legislature theory