State judges speak up about the independent state legislature theory ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

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Two North Carolina lawmakers, after seeing the state supreme court strike down their heavily gerrymandered congressional map, are now making an audacious argument to the U.S. Supreme Court. They not only claim that the state court erred in rescinding their map, but that it has no power to review any of the legislature’s decisions in administering congressional elections.

The lawmakers’ bid to eliminate state-level checks on gerrymandering and voter suppression is based on a dubious reading of the Constitution known as the “independent state legislature theory

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.” Their appeal in Moore v. Harper, and the radical theory as a whole, took a big hit last week when the Conference of Chief Justices filed a potentially case-turning amicus brief.

The significance of the brief is not just in what it says but in who is saying it. Many (including yours truly

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) have argued that the independent state legislature theory is contrary to the original understanding of the U.S. Constitution as well as 200 years of U.S. elections practice. Some of the framers themselves voted for state constitutions that curtailed the legislature’s power in elections administration. The independent state legislature theory would render those provisions nonsensical. This fact, along with many others damning to the independent state legislature theory, is well established.

The Conference of Chief Justices is no ordinary friend of the court. The group comprises the chief justice or judge of the highest court in all 50 states, the District of Columbia, and U.S. territories like Puerto Rico. The state judges speak to the U.S. Supreme Court as representatives of sovereign governments, and they remind the justices that the independent state legislature theory threatens that sovereignty.

“State sovereignty includes the power of each state to structure its own government and determine the relationships between the legislative and judicial branches,” the conference points out. The independent state legislature theory would represent a Supreme Court–mandated carve-out to each state’s sovereignty — barring state judicial review of any legislative decision relating to congressional elections.

If the framers intended to interfere so profoundly in the inner workings of state governments, they would have made that intervention explicit. But they did not. To the contrary, the Bill of Rights notes that powers not expressly delegated to the federal government are “reserved to the states respectively, or to the people.”

Officially, the Conference of Chief Justices brief does not support either party in the case. But the arguments it makes expose the logical inconsistencies and dangers of the independent state legislature theory and correctly identify it as an attack not just on citizens’ voting rights but on our federalist system as well.

Friend-of-the-court briefs can sometimes turn the tide in major Supreme Court cases. In 2003, for example, dozens of former high-ranking officers and military leaders signed a friend-of-the-court brief supporting the consideration of race in college admissions, which they regarded as critical to maintaining a diverse and highly qualified officer corps. At oral argument

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, when the solicitor general rose to attack affirmative action, he was unable to complete his second sentence before Justice John Paul Stevens interrupted to ask him about the military officers’ brief. Court observers agree that the brief was critical to the outcome of the case. (Perhaps not coincidentally, the attorney who filed that brief is also the attorney of record on the Conferences of Chief Justices’ brief in Moore.)

For at least a decade, the Supreme Court has disappointed supporters of voting rights. It has eviscerated the Voting Rights Act and turned a blind eye to partisan gerrymandering. Many worry that Moore will continue that trend. The Conference of Chief Justices, however, has thrown the justices a curveball. This is no longer just a voting rights case — it’s a federalism case.





Fixing the Census

The census is a cornerstone of American democracy, determining processes such as federal funding distribution and the number of seats each state gets in the House of Representatives. Yet the 2020 count was threatened by executive interference, underfunding, and pandemic-related issues. As a result, it missed 18.8 million people, and communities of color were undercounted at disproportionate rates. A comprehensive new Brennan Center report sets forth 19 proposals for reforming census law and policy to address both the problems that plagued 2020 and long-standing challenges to the count. Read more

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Tracking Election Messages on the Road to the Midterms

A new interactive tool from the Brennan Center and the Alliance for Securing Democracy tracks voting and election-related posts by candidates for office, news outlets, and other key messengers on social media platforms. With the midterms fast approaching, the project aims to give users insight into emerging narratives, such as election denialism and threats to democracy. READ MORE

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Checking DHS Bias

The Department of Homeland Security has long been plagued by discriminatory profiling, often relying on religious, ethnic, or racial stereotypes for its counterterrorism efforts. Though the current administration has taken steps to curb the department’s biased practices, gaps in the rules effectively allow profiling in many situations. A new Brennan Center report proposes ways to strengthen DHS’s nondiscrimination rules and develop more effective accountability mechanisms. READ MORE

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Reducing Misinformation Risks for Latino Voters

The Big Lie of a “stolen” 2020 election continues to generate false fraud claims and impact voters’ trust in elections. As the largest share of newly registered voters in the nation and the target of many restrictive voting laws, Latinos face especially high risks from election misinformation. “To reduce misinformation, election officials should run timely campaigns to educate voters, maintain rumor control pages where feasible, and make connections with trusted messengers to reach communities,” Mekela Panditharatne writes. Read more

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A Crossroads for Community Supervision

Major wireless carriers are shutting down their 3G networks this year, rendering 3G-reliant devices unusable. Many wearable GPS devices that are used to monitor people in the immigration and justice systems will be affected by the change, which could lead to a turning point for community supervision. “Instead of using the 3G Sunset as an opening to introduce modernized, high-tech electronic monitoring devices, local governments and federal agencies should take the opportunity to move away from the invasive and burdensome practice of electronic monitoring,” Taylor King and Kaylana Mueller-Hsia write. READ MORE

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Coming Up

VIRTUAL EVENT: Democracy on the Brink

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Wednesday, September 28, 6–7 p.m. ET



Ahead of the midterms, efforts to interfere with voting are in full swing. The implications are serious, especially for Latino and Black communities. State lawmakers are responding to false claims of a “stolen” election with legislation that restricts the right to vote. These communities also face the growing problem of misinformation. For an inside look at what these issues mean for the 2022 elections and beyond, join the virtual premiere of our recent conversation at the convention of the national associations of Black and Latino journalists. This event will include a live text chat Q&A with Brennan Center election expert Sean Morales-Doyle. RSVP today

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Spanish language interpretation will be available for this event.



Produced in partnership with the National Association of Hispanic Journalists

Want to keep up with Brennan Center Live events? Subscribe to the events newsletter.

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News

Patrick Berry on Florida’s arrests of people with past convictions for voting while ineligible // HUFFINGTON POST

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Wendy Weiser on the dangers of training poll watchers to break rules // CNN

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Stephanie Wylie on the downsides of strict sentencing laws // ASSOCIATED PRESS

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