WASHINGTON—The widely discredited independent state legislature theory, if adopted, would render state courts largely powerless to stop voting barriers that violate state constitutions, threatening to reverse the gains of the Civil Rights Movement, according to an amicus brief filed Wednesday with the U.S. Supreme Court.
The brief, submitted by some of the most prominent civil rights, social justice, labor, and bar associations in the country, argues that this theory would erode long-standing state constitutional and state court guardrails that protect Black voters and other voters of color, and that it is contrary to bedrock principles of federalism and judicial review.
Counsel on the brief are the Lawyers’ Committee for Civil Rights Under Law and Cravath Swaine & Moore. The groups filing the brief include Advancement Project, Asian American Legal Defense and Education Fund, Asian Americans Advancing Justice-AAJC, Demos, LatinoJustice PRLDEF, the Leadership Conference on Civil and Human Rights, the National Association for the Advancement of Colored People, the North Carolina State Conference of the National Association for the Advancement of Colored People, the National Education Association, the National Urban League, the Native American Rights Fund, the New York County Lawyers’ Association, People For the American Way, and The Workers Circle.
“The dangerous and widely-debunked independent state legislature theory is plainly contrary to fundamental principles of federalism and long-standing precedent. It seeks to entrench discriminatory techniques that hurt Black voters and other voters of color,” said Damon Hewitt, President and Executive Director of the Lawyers’ Committee for Civil Rights Under Law. “This nation has a long history of state legislatures running rampant over the rights of Black voters and other voters of color. In addition to federal courts and the U.S. Constitution, state courts have played a key role in serving as a check on such abuses, by interpreting the states’ own laws and constitutions. Preventing state courts from fulfilling their duty in this way would be an unconscionable power grab, allowing state legislatures to violate civil rights with impunity. The stakes have never been higher. Recently, those in power have sought to preserve and grow their control with more subtle discriminatory approaches, often under the guise of ‘race-neutral’ restrictions on the times, places, and manner of voting, including redistricting plans purportedly justified by ‘party, not race’ motives. The Supreme Court must reject these attempts to subvert democracy by upending long-standing check and balances.”
“Our democracy and access to the ballot for all Americans has been under constant attack. The weakening of the Voting Rights Act and the passage of restrictive laws at the state level have left voters with few protections,” said Judith Browne Dianis, Executive Director at Advancement Project. “To ensure free and fair elections, we must have checks and balances that include state courts. The fringe theory raised in Moore would allow state legislatures to run amok allowing power grabs and restrictions that harm voters, especially voters of color. This is not aligned with precedent or our constitutional values.”
“Asian American and Pacific Islanders (AAPI) are the fastest growing population in the U.S. with the number of eligible voters projected to be over 12 million by 2040. In many states, AAPI voters make up more than 5% of their electorates,” said Niyati Shah, Director of Litigation at Asian Americans Advancing Justice-AAJC. “Our communities must have recourse at all levels in order to ensure they are able to fully exercise their voice in a democratic society.”
“The NAACP is proud to stand with our North Carolina State Conference leaders and the Lawyers’ Committee in this critical moment to protect our democracy and ensure that all voters have the right to vote in free and fair elections,” said Janette McCarthy Wallace, NAACP General Counsel. “With voter suppression efforts on the rise across the country, it is more important than ever that we remain vigilant to all veiled attempts. Our nation’s highest court must uphold the rule of law and block this malicious attempt to undermine our fundamental right to access the ballot box. We will watch this case closely as it heads to the Supreme Court for oral argument in December.”
“This case is yet another attempt by extreme lawmakers to strip voters of their fundamental right to vote,” said Deborah Maxwell, NAACP North Carolina State Conference President. “Voters in North Carolina have faced voter suppression before and surely will again in the future. The North Carolina State Conference will continue to speak up and fight back against these flagrant abuses of power every time. We urge the Supreme Court to uphold our constitutional rights and ensure that unlawful and discriminatory laws passed by extreme legislators can be challenged in our courts.”
“The Supreme Court has taken up Moore v. Harper at a time when laws that create barriers for voters of color have been passed by state legislatures at an alarming rate, said Ann Toback, CEO of the Workers Circle. “If checks and balances on state legislatures making laws about federal elections are removed, it would thwart free and fair elections and accelerate passage of further anti-voter laws that target voters of color, with impunity. The Workers Circle is a national, secular, Jewish social justice organization founded by Eastern European immigrants who came to the US fleeing autocracy and persecution and seeking democratic freedoms at the turn of the 20th century. We know what power, un-checked, can do. We are proud to stand in the company of the filers of this amicus and urge the Supreme Court to reject this attempt to subvert our democracy and deny equal access to the ballot.”
“State courts provide checks and balances that can prevent unconstitutional laws passed by self-serving politicians from disenfranchising entire communities,” said Jacqueline De León, Native American Rights Fund Senior Staff Attorney. “The Native American Rights Fund has repeatedly been called to defend voting rights in state courts when politicians ignore their Native American constituents, and this critical forum must remain open. We proudly stand with the North Carolina State Conference and the Lawyers’ Committee to ensure that voters choose their politicians, and not the other way around.”
“Our democracy, the bedrock upon which this country was founded, has been under vicious and sinister attack — beginning with the events of January 6th and cascading through state legislatures across the nation,” said Marc H. Morial, President and CEO of the National Urban League. “This case is another prime example of recent attempts to suppress, deny, and thwart the right of our communities to fully participate in the election process. That only tells us one thing: Some are threatened by the power we wield. Eliminating state courts from the equation will not only disrupt the checks and balances they provide but will allow rogue states to go unchecked when drawing district lines or implementing early voting laws. It is imperative that the Supreme Court protects this nation’s voting laws and ensures that any attempt to block this effort be denied.”