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League of Women Voters Files Amicus Brief in Moore v. Harper

LWV | Published on 10/26/2022

the League of Women Voters of the United States and League chapters from all 50 states and the District of Columbia filed an amicus brief in the Moore v. Harper case before the Supreme Court. The case concerns the so-called “independent state legislature theory” (ISLT), which, if adopted, would have far-reaching implications for the future of American democracy. The League is represented by Fair Elections Center and O’Melveny & Myers LLP.

"Giving states unchecked power to set rules for federal elections is an assault on the American voter," said Virginia Kase Solomón, CEO of the League of Women Voters of the US. "Historically, state legislatures have enacted the most harmful and suppressive anti-voter laws, and pro-voter groups like the League have relied on the ability to fight them in state courts. The Independent State Legislature Theory is a dangerous, fringe ideology that leaves voters effectively defenseless from harmful election laws."

The League of Women Voters has serious concerns about this case because a ruling adopting ISLT would give state legislatures nearly unrestricted authority to set the rules for federal elections, prioritizing the ambitions of politicians over the American voter. Furthermore, if the Supreme Court condones this theory, it will undermine the role of state courts to protect voters when politicians create unconstitutional barriers to voting, draw unlawful voting maps, and invalidate direct democracy efforts like ballot initiatives.

"In creating the US Constitution, the framers were intentional about establishing a checks and balances system to disrupt any one branch of government from becoming too powerful," said Celina Stewart, chief counsel and senior director of advocacy and litigation at the League of Women Voters of the US. "Because state courts have been vested in the salient role of deciding disputes that govern our daily lives, any unraveling of this longstanding balancing would be a dangerous and historic blow to democracy as we know it. We implore the Court to rule in favor of voters and reject the Independent State Legislature Theory."

As this case has massive implications for every state, the League of Women Voters amicus brief expresses the concerns of Leagues representing all 50 states and the District of Columbia. The League’s brief focuses on the practical, negative impacts that ISLT will have across the country. Specifically, the brief explores how implementing such a theory would create different election rules for state, local, and federal elections that would cause confusion for administrators and voters alike and would have a deleterious effect in maintaining free and fair elections.

"The theory advanced in Moore calls for a legal revolution that would chop up and alternate rules by type of election, ushering in chaos and confusion for poll workers and voters," said Jon Sherman, litigation director and senior counsel for Fair Elections Center. "In this dangerous moment for our democracy, the Supreme Court must be a steady hand."

"Our team is privileged to have had the opportunity to collaborate with the League of Women Voters and the Fair Elections Center in showing how ISLT would shatter election norms and processes that are central to the functioning of our democracy," said Meaghan VerGow, partner at O’Melveny & Myers LLP.

from the Wisconsin state League:
"If ISLT becomes law, the damage to Wisconsin’s electoral politics will be severe. Wisconsin’s 2022 redistricting map, one of the most highly partisan gerrymandered maps in the United States, will remain in place for decades to come, as the legislators currently in power will be guaranteed to keep their seats. Further, the floodgates will open for more legislatively restricted voting rights, also not subject to a gubernatorial veto, which, in this last legislative session, stopped more than 100 bills designed to limit voting access. Under ISLT, electoral challenges in state court will be moot, as the Wisconsin legislature will have plenary power to continue the status quo indefinitely and the core principles of judicial review and the separation of powers will be non-existent in Wisconsin’s electoral politics."
Debra Cronmiller, League of Women Voters of Wisconsin, Executive Director.