ERN Calls for the Supreme Court to Protect Election Innovation and Reject the Independent State Legislature Theory

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December 7, 2022
Al Vanderklipp

Statement from ERN Executive Director Kevin Johnson:

Today, the U.S. Supreme Court heard oral arguments in Moore v. Harper. This case is about the “Independent State Legislature” (ISL) theory and whether state legislatures are subject to checks and balances when they pass state laws governing federal elections. The Court’s decision has the potential to put more power over election administration into the hands of partisan actors and to throw the work of election officials into chaos. Election Reformers Network has carefully followed the case, and we urge the Court to reject the ISL theory.

We believe that checks and balances are vital to a healthy, functioning democracy, and that this is especially true when it comes to the oversight of elections. State legislators, who stand to directly benefit from election results, should establish broad policy principles for elections, not micromanage their technical details. The U.S. is already far out of step with peer democracies in the degree of detailed control legislatures exert over elections, a situation that contributes to massive election litigation and increases partisan animosity. The ISL theory would make that dynamic even worse.

We believe election rules and regulations should be set by nonpartisan boards and/or by nonpartisan state chief election officers, and carried out by independent, professional election administrators. All states should establish independent redistricting commissions, and those already in place should be allowed to continue their work in adopting fairer district maps. And state courts should continue to play their critical role in enforcing state constitutions and holding political actors accountable.  Although the oral arguments today focused primarily on issues related to state courts and gerrymandering, the ISL theory has the potential to put all common-sense election goals out of reach.

A staggering number of amicus curiae parties have raised these important issues. And several amici briefs in particular highlight how the ISL theory could undermine the independence of election officials to make the practical decisions needed in our hugely complex election system. These include the brief of 13 secretaries of state; the brief of current and former election administrators; the brief of former Republican elected and executive branch officials; the brief of various local government national associations (including the National Association of Counties and the National League of Cities); and the brief of local government law professors.

In oral arguments, the Justices returned several times to the question of “whose ox is being gored?” – implying that structural changes must necessarily help one side and hurt the other. One of the advocates forcefully pushed back against that kind of partisan cynicism: Many states genuinely have made progress toward fairer, nonpartisan solutions that advance transparency and trust, not one side’s chance of winning. The ISL theory directly threatens that important progress.

As an organization that believes in and advocates for more such common-sense reforms, we hope that the Court rejects this radical theory and allows states to continue pursuing solutions that can meet the moment in responding to our increasingly polarized times.

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Photo by Adam Michael Szuscik on Unsplash