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October 26, 2022

ABA amicus brief says legal theory before U.S. Supreme Court poses ‘dire’ consequences

CHICAGO, Oct. 26, 2022 — The American Bar Association filed an amicus brief today 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 pose a severe threat to republican democracy" by freeing federal elections from the rule of law constraints that protect their integrity.

The case is one of the most closely watched in this U.S. Supreme Court term, which began Oct. 3. 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.

The North Carolina Supreme Court held that the state legislature’s partisan gerrymander of congressional districts violated multiple provisions of the state constitution. The petitioners, a group of Republican state legislators, then asked the U.S. Supreme Court to overturn that ruling, citing the so-called “independent state legislature theory.” It maintains 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 asks the U.S. Supreme Court to affirm the ruling of the state high court, which rejected the independent state legislature theory. “The framers of the United States Constitution established a system of republican government with the rule of law and regular elections as two of its mutually reinforcing pillars,” the ABA brief says. “Fearing the growth of legislative power, the framers intended to make federal legislators accountable to the people through regular elections that would be kept free and fair through the rule of law — including by state constitutional rules enforced by independent state courts.”

The brief warns that 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 adds that the theory is “irreconcilable” with both the framers’ desire to “limit legislative power” and their “aspiration for ‘a government of laws and not of men.’”

The ABA amicus brief in Moore v. Harper is here. Oral arguments in the case are set for Dec. 7. The law firm of Selendy Gay Elsberg PLLC of New York filed the brief pro bono on behalf of the ABA.

The ABA is the largest voluntary association of lawyers in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.