Prominent Conservatives Warn About Dangerous Potential Repercussions of Moore v. Harper

This column contains a correction.

As the Center for American Progress has explored in a prior report, video, and several articles, the U.S. Supreme Court is currently deciding how to rule in the blockbuster pending case of Moore v. Harper. Concurrently, the North Carolina Supreme Court is reconsidering the related state case. This state and federal court litigation involves the fringe independent state legislature (ISL) theory, advanced by Republican legislators in North Carolina and their allies. Applied broadly, the ISL theory could give partisan state lawmakers almost limitless power to manipulate federal election rules and draw unfair congressional districts.

Regardless of which court ultimately decides the Moore v. Harper case, justices should be aware that the ISL theory has been rejected not only by progressive and moderate legal experts but also by many prominent conservatives. There is widespread agreement that this baseless legal theory could damage free and fair elections, run roughshod over settled precedent, and upend the system of checks and balances.

This column briefly explores some of the most notable statements by prominent conservative analysts that have urged rejection of the ISL theory.

The ISL theory, explained

The ISL theory relies on a nonsensical reading of two clauses in the U.S. Constitution to assert that state legislatures—and only state legislatures—have the authority to set election-related rules and draw congressional maps. Opponents correctly observe that the standard interpretation of “legislature” over several centuries of legal precedent broadly involves the state’s entire lawmaking process, including a governor’s signature or veto, rulings of state courts, the parameters of state constitutions, discretion exercised by election officials, and citizen-led ballot initiatives. Experts predict that if courts adopt the ISL theory, it could further embolden partisan state legislatures, at least 21 of which have recently passed anti-voter or election sabotage laws.

As CAP has written, an expansive adoption of the ISL theory could imperil pro-voter laws protecting fair congressional districting, voting by mail, early voting, voter registration, and countless other laws designed to increase Americans’ access to free and fair elections, while also spurring massive litigation and making election administration extremely chaotic.

Conservative critiques of the ISL theory

Far from falling along typical ideological fault lines, the ISL theory has drawn scorn from across the ideological spectrum, including from an array of prominent conservative experts. The following are instructive examples. Where cited, briefs filed in the U.S. Supreme Court in the Moore v. Harper case should be consulted for a plethora of additional statements discrediting the ISL theory.

Judge J. Michael Luttig

Conservative icon J. Michael Luttig, a former federal circuit judge, starkly warns that Moore v. Harper is “the most important case for American democracy in the almost two and a half centuries since America’s founding” and worries that the ISL theory will be a central part of a future attempt by conservative extremists to steal elections. Luttig also co-wrote a U.S. Supreme Court amicus brief stating, “It is rare to encounter a constitutional theory so antithetical to the Constitution’s text and structure, so inconsistent with the Constitution’s original meaning, so disdainful of this Court’s precedent, and so potentially damaging for American democracy.”

Benjamin Ginsberg

Perhaps the nation’s most prominent conservative election lawyer, Benjamin Ginsberg—who represented George W. Bush in the historic Bush v. Gore case—submitted a U.S. Supreme Court amicus brief asserting that the ISL theory, if adopted, would create a “toxic brew of uncertainty, distrust, partisanship, and unchecked power” that could lead to many election “nightmare scenarios.” Ginsberg’s brief also stated:

[The ISL theory] would upset settled expectations and create untenable legal uncertainty around elections; cause confusion for election administrators and voters; increase the odds that state legislatures replace the popular vote with their own political preferences; and flip our system of state and local control of elections on its head by making federal courts resolve election disputes—many in an emergency posture—at an unprecedented scale; all at a time when our country can least withstand it.

Steven G. Calabresi

Steven G. Calabresi, an original co-founder of the hugely influential Federalist Society, co-authored a U.S. Supreme Court amicus brief critiquing the ISL theory, concluding that “Principled originalism compels rejection of [the North Carolina legislators’] claims. The more one knows about the Constitution’s text, history, and deep structure, the clearer it is that [they] must lose.” Calabresi explains that adoption of the ISL theory would be a “constitutional travesty” and “a huge national power grab.”

Co-founding member of the Federalist Society, Peter Keisler, with a group of former federal judges and conservative elected and executive branch officials

Peter Keisler, who co-founded the Federalist Society and served as acting U.S. attorney general under President George W. Bush, filed a U.S. Supreme Court amicus brief with 16 prominent conservatives who served as judges or public officials. These individuals include, among others, former federal circuit court Judge Thomas Griffith, former Sen. John Danforth (R-MO), and former acting U.S. Attorney General Stuart M. Gerson. They find no precedent for the ISL theory, writing, “Never has any federal court struck down a state constitution provision because of the Elections or Electors Clause” and warning that, under the ISL theory, “waves of federal court election litigation would become endemic.”

Group of former Republican elected and executive branch officials

Several prominent conservatives who served in public office—including former Sen. Gordon Smith (R-OR), former Rep. Susan Molinari (R-NY), former Rep. Christopher Shays (R-CT), former Gov. Christine Todd Whitman (R-NJ), and Charles Fried, the solicitor general for former President Ronald Reagan—filed a U.S. Supreme Court amicus brief. Their argument posits:

[The ISL theory] would frustrate constitutional values and achieve none of its purported goals: it contradicts constitutional text and history, runs counter to longstanding practice, and would wreak unparalleled havoc on the electoral landscape. The Court should reject such an unfounded, unprecedented, and dangerous constitutional theory.

Conservative state chief justices

In a rare occurrence, current and former chief justices of the courts of last resort in all U.S. states and territories—including many conservative judges and judges appointed by Republican governors—jointly filed a U.S. Supreme Court amicus brief that rejects the ISL theory and concludes that “the Elections Clause does not oust state courts from their traditional role in reviewing election laws under state constitutions.” The brief was written by Carter G. Phillips, assistant solicitor general under President Reagan and longtime Supreme Court practitioner.

Separately, Texas Supreme Court Justice Nathan L. Hecht, elected as a Republican, asserts that the ISL theory could damage the nation’s federalist system and spur massive amounts of litigation that would “profoundly affect both the state and the federal courts.”

David Rivkin

David Rivkin, who served in the U.S. Department of Justice in a variety of senior positions during the Reagan and George H.W. Bush administrations—including as deputy director of the Office of Policy Development—observes that the ISL theory “would completely eliminate the opportunity to set aside redistricting maps based upon the proposition that they be some kind of a partisan gerrymander.”

Paul Rosenzweig

Paul Rosenzweig, former deputy assistant secretary for policy at the U.S. Department of Homeland Security under President George W. Bush, describes the ISL theory as “radical,” a potential “catastrophe” with “insidious” repercussions, warning that it ultimately would make our nation “recognizably less democratic and more partisan.”

Conclusion

Courts considering the fringe ISL theory must remain aware that it has been rejected by a steady stream of conservative legal experts and leaders. There is wide agreement that if extremist judges decide to ignore settled precedent and adopt this baseless legal theory, they will be taking a giant step toward uprooting our democracy’s fundamental checks and balances and jettisoning the chances for a system that fairly represents the views of all voters.