WASHINGTON, D.C. – Attorney General Karl A. Racine today led a coalition of 22 Attorneys General in filing a friend of the court brief in Moore v. Harper, a case in which the U.S. Supreme Court will decide whether to adopt the radical “independent state legislature theory” (ISLT) and give state legislators the sole, unchecked authority to make election rules at the expense of voters and other state institutions. The coalition is supporting North Carolina, its voters, and voting-rights organizations in their challenge.
In the brief, the attorneys general argue that ISLT lacks any historical or constitutional foundation and that its adoption would invalidate a large swath of state election law that does not come from the state legislature, such as state constitutions, court decisions, and regulations. Elections would thus become unworkable and impossible to administer.
“Motivated by an unquenchable thirst for power, extremists in the North Carolina state legislature are committed to taking the state back to a time when the sacred right to free and fair elections did not exist,” said AG Racine. “This is part of a coordinated effort throughout our country to destroy principles of democracy that distinguish our country from despots and authoritarian governments in other parts of the world. Anti-democratic extremists are gaining momentum, relying on demonstrable lies about alleged voter fraud that have never been established and working to divide our country on racial and other grounds. My office will use every tool available to fight back against attempts to manipulate our democratic processes. The history and future of our country demands no less.”
The U.S. Constitution provides that a state’s legislature may set rules governing federal elections. Historically, the Supreme Court has interpreted “legislature” flexibly to include any state actor or entity who exercises lawmaking power. The Court has never questioned that a state court has the power to rule on election statutes and state constitutional provisions.
Consistent with this precedent, North Carolina’s Supreme Court interpreted its state constitution to prohibit partisan gerrymandering and struck down North Carolina’s badly gerrymandered congressional maps as violating the state constitution. At the request of the North Carolina state legislators, the U.S. Supreme Court granted certiorari to consider whether the ISLT is correct, and whether the North Carolina Supreme Court was thus without power to prohibit partisan gerrymandering. At the U.S. Supreme Court, the North Carolina state legislators are arguing that only state legislators—not other actors like the state supreme court, executives, or voters—can make election rules. ISLT is gaining traction among conservative academics and jurists, but it lacks any support in American history or precedent of the U.S. Supreme Court. The theory would unravel states’ election processes and impede election officials’ ability to administer free and orderly elections.
The attorneys general raise two main points:
- State constitutions, courts, and officials historically played an integral role in regulating federal elections: At and after the nation’s founding, states employed various institutions of state government, including their constitutions, courts, and executive officials, to set and implement the rules governing federal elections. Under the guise of originalism, ISLT calls into question what the nation’s founders themselves practiced.
- ISLT threatens states’ ability to administer free and fair federal elections: The states’ historical practice continues today. Justifying their reputation as laboratories of democracy, contemporary state governments still use different branches of their government to conduct elections. ISL threatens to wreak havoc and disrupt the states’ established elections practices.
A copy of the amicus brief is available here.
AG Racine is leading the amicus brief with the Attorney General for the State of Illinois, Kwame Raoul and they are joined by Attorney Generals from California, Colorado, Connecticut, Delaware, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin.
Background on Protecting and Expanding Voting Rights
AG Racine has worked to defend the voices of District voters and voters nationwide. He has led multi-state coalitions opposing unfair voting restrictions against returning citizens in Florida, North Carolina, and Minnesota. In the lead up the 2020 election, AG Racine spearheaded coalitions to protect voting access in Alabama, Mississippi, South Carolina, and two Texas cases, and defended deadline extensions for mail-in ballots in Minnesota and North Carolina. He also led a coalition of 23 attorneys general opposing Texas Attorney General Ken Paxton’s baseless effort to invalidate the results of the 2020 election, and secured a preliminary injunction stopping U.S. Postal Service cuts that threatened the right to vote for millions of people planning to vote by mail during the pandemic. In August 2021, AG Racine and AG James led a coalition of 22 attorneys general in opposing Georgia’s discriminatory voting law. And in September 2021, AG Racine and AG James co-authored an op-ed that appeared in Crooked Media about continuing to stand up for the right to vote.