Voting Rights and Democracy

RELEASE: New Constitutional Accountability Center Amicus Brief Shows That the So-Called Independent State Legislature Theory Is a Fabrication that Cannot Be Squared with Constitutional Text and History

WASHINGTON, DC – Earlier today, the Constitutional Accountability Center (CAC) filed a brief at the Supreme Court in Moore v. Harper.  The brief explains that the so-called “independent state legislature theory” has no basis in the Constitution’s text and history and therefore the decision of the North Carolina Supreme Court, which interpreted the North Carolina Constitution to annul partisan gerrymandering in the drawing of congressional districts, should be affirmed.

CAC Civil and Human Rights Director David Gans said:

The so-called independent state legislature theory is a fabrication that cannot be squared with the Constitution’s text and history.  In our constitutional scheme, state legislatures are creatures of the Constitution, not independent of it.  The Constitution does not prevent state courts from vindicating voting rights guarantees enshrined in state constitutions to limit state regulation of congressional elections.

As we explain in our brief, the Elections Clause, merely by granting state legislatures the power to regulate the time, place, and manner of federal elections, does not cast aside state constitutional checks and balances, including the principle that state legislatures may not transgress limits on their power spelled out in their own constitutions and enforced by their own courts.  Judicial review by state courts to enforce rights guaranteed by state constitutions is part of the double security our system of federalism promised.

Not a shred of Founding-era evidence supports the idea that state legislatures, when regulating federal elections, should be free from state constitutional restraints that would otherwise apply to their enactments.  On the contrary, as our brief explains, the historical record demonstrates that the Founding generation was deeply concerned that state legislatures would manipulate the electoral process for partisan gain.

The so-called independent state legislature theory is as wrong as it is radical.  It would annul state constitutional protections passed over the course of centuries to protect voting rights and ensure political equality, wreak havoc on electoral processes across the country, and do violence to principles of federalism.  The Supreme Court should reject it because it has no basis in the Constitution’s text and history.

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Resources:

Case page in Moore v. Harper: https://www.theusconstitution.org/litigation/moore-v-harper/ 

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Constitutional Accountability Center is a nonpartisan think tank and public interest law firm dedicated to fulfilling the progressive promise of the Constitution’s text, history, and values. Visit CAC’s website at www.theusconstitution.org.

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