“Independent legislature” US election theft ploy rejected

Demonstrators protest during a “No Lawless Lawmakers” rally at the US Supreme Court during oral arguments in Moore v. Harper on December 7, 2022 in Washington, DC. Photo by Tasos Katopodis — Common Cause.

In ‘Very big deal for the survival of our democracy,’
the US Supreme Court rejects fringe legal theory

by Jessica Corbett — Common Dreams

Democracy defenders across the United States on Tuesday breathed a collective sigh of relief after half of the US Supreme Court’s right-wing supermajority joined with the three liberal justices to reject a “dangerous” legal theory that could dramatically impact federal elections.

Oral arguments for Moore v. Harper in December had some campaigners worried that at least five justices would embrace independent state legislature theory (ISLT), whose proponents claim the US Constitution only empowers state legislatures to regulate federal elections, without checks from state constitutions, courts, or governors.

However, in the case—which stemmed from a fight over North Carolina’s congressional map—Chief Justice John Roberts, fellow conservatives Amy Coney Barrett and Brett Kavanaugh, and liberals Elena Kagan, Ketanji Brown Jackson, and Sonia Sotomayor rejected ISLT. Right-wing Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented.

The elections clause of the US Constitution “does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections,” Roberts wrote for the majority. “When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review.”

“When a state legislature carries out its federal constitutional power to prescribe rules regulating federal elections, it acts both as a lawmaking body created and bound by its state constitution, and as the entity assigned particular authority by the federal Constitution,” he continued. “Both constitutions restrain the state legislature’s exercise of power.”

“Although the elections clause does not exempt state legislatures from the ordinary constraints imposed by state law, federal courts must not abandon their duty to exercise judicial review,” Roberts added. “This court has an obligation to ensure that state court interpretations of state law do not evade federal law.”

Elias Law Group partner Abha Khanna, counsel of record for the Harper plaintiffs, called the 6-3 decision “a resounding victory for free and fair elections in the United States.”

The ISLT “is a dangerous, fringe legal theory that has no place in our democracy,” Khanna said. “In its most extreme form, the independent state legislature theory could have weakened the foundation of our democracy, removing a crucial check on state legislatures and making it easier for rogue legislators to enact policies that suppress voters and subvert elections without adequate oversight from state court.”

Bob Phillips, Common Cause North Carolina’s executive director, similarly declared that “this is a historic victory for the people of North Carolina and for American democracy.”

“Today, the US Supreme Court made clear that state courts and state constitutions should serve as a critical check against abuses of power by legislators,” he said. “Now, we must ensure our state courts fulfill their duty to protect our freedoms against attacks by extremist politicians.”


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