Updated June 27, 2023
|By Dave O'Brien
Policy Director, RepresentUs
Today, the U.S. Supreme Court did the right thing and took a stand against corrupt, partisan state politicians trying to gain unchecked power over federal elections.
In its decision, the Court has rejected a claim under the Independent State Legislature Theory (ISLT) which would have handed state lawmakers the ability to make unilateral changes to laws about things like gerrymandering, absentee voting, and voter ID.
Let us be clear: ISLT was always a fringe theory pushed by extremists. Now, that radical reinterpretation of the Constitution has been rejected by our nation’s highest court. But we know corrupt politicians won’t stop there.
So today, we're breathing a sigh of relief that democracy is safe for another day. And tomorrow, RepresentUs will get back to work strengthening American democracy because as long as corrupt politicians are making a play for power, we’ll be standing guard. Are you with us?
What is Moore v. Harper?
After finishing the latest term with a string of high-profile rulings, the U.S. Supreme Court made one more major announcement: The justices would hear a case later this year that has major implications for the future of American democracy.
That case is called Moore v. Harper. Depending on how the Court rules, countless laws could be struck down, including anti-gerrymandering measures, Ranked Choice Voting, and any other reform passed by the voters that affects federal elections. Voters would have even less influence over elections than they already do, and even state courts and constitutions might not be able to act as a check on legislators.
What’s the Independent State Legislature Theory?
At the core of Moore v. Harper is something called the Independent State Legislature Theory (ISL). Advocates for ISL argue that the Constitution only allows Congress and state legislatures to make rules about federal elections. Not state courts. Not state constitutions. Not the voters.
Courts have rejected this theory many times over the years. In 1916, the Supreme Court ruled that citizens in Ohio had the right to veto election laws through popular referendums. And nearly a century later, the Supreme Court ruled that Arizona’s independent districting committee, which was passed by a ballot initiative, was constitutional.
The news that the current Supreme Court has taken an ISL case means that decades of precedent is at risk. That’s because in order for the Court to officially take a case, four justices must agree to hear it. With at least four justices interested in this issue, there’s a chance that ISL could become the law of the land next year.
Background of the North Carolina case
Earlier this year, the North Carolina Supreme Court rejected extremely gerrymandered congressional and statewide legislative maps drawn by the state legislature, ordering new ones to be drawn.
RepresentUs played a key role in the fight against gerrymandering in North Carolina, working with a cross-partisan coalition to help secure a fairer map. Ultimately, the state implemented new congressional and state maps that the Princeton Gerrymandering Project graded as a “B” and “A” respectively.
Unfortunately, that wasn’t the end of the story. North Carolina legislators appealed the state court’s ruling all the way to the Supreme Court. They claim that ISL means that state courts have no authority to throw out gerrymandered maps. In their argument, the only ones with any authority over how federal elections are run are the state legislatures and Congress.
What’s at stake?
Election experts and pro-democracy advocates were alarmed by the news that the Supreme Court took the Moore case. A decision for the North Carolina Republicans in this case would be disastrous for the future of American democracy. With so many gerrymandered states across the country, state legislatures would be free to continue drawing unfair and rigged districts and ignore pro-democracy ballot initiatives.
Much of the recent progress RepresentUs and other pro-democracy groups have made in states around the country would be at risk. Nevada’s 2018 ballot measure enacting automatic voter registration could be struck down as applied to federal elections. As could Michigan’s 2018 election reforms providing no-excuse absentee voting and same-day voter registration. As could Alaska’s top-four nonpartisan primary and Ranked Choice Voting general election system.
The Supreme Court could upend decades of democratic progress if it chooses to throw out a century of precedent and recognize ISL. Parts of the electoral process that voters have counted on for years could be gone, or might only apply to state and local races – not federal elections. American democracy will feel the disruption and uncertainty caused by ISL for years to come.
All of these important reforms, as well as the chance for future progress, are threatened by ISL if the Supreme Court rules in favor of the North Carolina legislators. We’re unlikely to see a ruling until next year, and RepresentUs is going to continue educating voters, pushing for pro-democracy reforms, and fighting back at attempts like this to weaken our democracy.
Here's what you can do
Sign the open letter: The Supreme Court is collecting feedback from the public, so we drafted an open letter to the Court to show support from our community. Add your name today!