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Brennan Center for Justice The Briefing
The Supreme Court will soon hear arguments on the “independent state legislature theory,” a dubious reading of the Constitution that would let state lawmakers gerrymander and suppress votes without the traditional limitations imposed by governors, state judges, and state constitutions. Checks and balances — so central to our country's vision — would be wiped out.
The framers didn’t intend this outcome. The text of the Constitution does not compel it. Throughout history, it didn’t even come up. And anyone with an elementary-school understanding of checks and balances should recognize that it’s a bad idea. It must also be noted, the Supreme Court has already rejected it, most recently in 2015.
And yet, in Moore v. Harper, the theory is being taken seriously by the high court. Its proponents hope that new justices will yield a different outcome, in the same way that opponents of reproductive rights managed to overturn Roe v. Wade without achieving a meaningful change in national opinion.
If this all sounds outlandish, well, it is. And it is a bit complex, a bit arcane.
A key way to stop this radical move is by raising public awareness. At a time when even justices are warning that the Supreme Court is squandering its legitimacy, public attention will matter.
We at the Brennan Center are playing our role in warning people of the dangers of the independent state legislature theory. We have explainers on both the theory itself and Moore v. Harper, the case pending before the Supreme Court. We compiled an academic literature review to show that the theory exists purely on the fringes of scholarship. And Brennan Center lawyers, some of the world’s experts in this field, have fanned out to help educate legislators and the public.
Today the Brennan Center launched a new effort to explain the risks: a short animated video that we hope you will watch and share widely. Broad understanding of (and opposition to) the independent state legislature theory will force the Supreme Court to think twice about adopting this radical and disruptive idea.
They may protest loudly to the contrary, but the justices are well aware of public opinion. It's important that an unwise ruling would be seen for what it would be: a radical step that would undermine American democracy. Let's make sure they know that we know.
Animated by Patrick Smith

 
Understanding the FBI’s 2021 Crime Data
The FBI released its 2021 crime data last week using an updated method for collecting and reporting data. Though the modernized system is more comprehensive than its predecessor, the changes make it difficult to accurately compare last year’s crime statistics with those in preceding years. As an added complication, numerous law enforcement agencies, including in major cities such as San Francisco and New York, have yet to transition to the new system, leaving the FBI’s critical annual report with significant blind spots. “Policymakers will have to exercise great care when using this limited data,” Ames Grawert and Noah Kim write. Read more
An Overview of this Decade’s Map Drawers
As in previous decades, most of the congressional districts in this redistricting cycle were drawn through partisan-controlled processes. But in a positive development for fair maps, a growing number of districts are being drawn or modified by independent commissions and state courts. A new Brennan Center resource breaks down who controlled redistricting in every state and the impact on political competitiveness. Read more
What to Know About the Classified Mar-a-Lago Documents
The discovery of hundreds of government documents at Donald Trump’s Mar-a-Lago resort has sparked a barrage of questions. What information is in them? How and why were they classified? Can a president single-handedly declassify information? A new Brennan Center explainer addresses these questions and what they mean for Trump’s criminal liability. Read more
Michigan Incumbents Are Winning the Money Race
The issue of election denial is continuing to drive millions of dollars into previously little-noticed races. In Michigan’s contests for governor, secretary of state, and attorney general, incumbents have amassed $40 million — 10 times more than their election denying challengers. Though national donors are funding proponents of election conspiracies, they are being far outspent by outside groups backing those opposed to election denial. “With about a month until Election Day, it’s all but impossible that the financial imbalance will significantly change,” Ian Vandewalker writes. Read more
A Census that Counts for Everyone
Due to long-standing failings and pandemic-related issues, the 2020 census missed 18.8 million people, with communities of color going undercounted at disproportionate rates. These errors in the count lead to inequitable distributions of political power and federal funding, reinforcing societal inequality and undermining the census’s core purposes. “The only path to true census accuracy is census equity. The Census Bureau must put equity at the forefront of its plans as it begins to prepare for — and improve — the next census,” Madiba Dennie writes. Read more

 
News
  • Kevin Morris on how Florida can help people vote after Hurricane Ian // WLRN
  • Lawrence Norden on the increased strain on election workers // NEW YORK TIMES
  • Gowri Ramachandran on plans to hand count ballots in Nevada // NEW YORK TIMES
  • Jasleen Singh on the dozens of restrictive voting laws enacted since 2020 // TALKING POINTS MEMO

 
 
Brennan Center for Justice at NYU School of Law
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