Filing: SCOTUS Should Rule in Major Voting Rights Case, Moore v. Harper

The dispute over the fringe independent state legislature theory must be resolved by the U.S. Supreme Court in time to prepare maps, ballots and election rules well in advance of the 2024 elections, according to briefing filed today by Common Cause in the Moore v. Harper case.

“The Question Presented in this case is ‘important’ and it is ‘almost certain to keep arising until the Court definitively resolves it,’” the brief states, quoting Justice Brett Kavanaugh. “Petitioners’ independent state legislature theory calls into question hundreds of state constitutional provisions and as many (or more) election laws. … It is therefore exceptionally important that the Court address the Question Presented as quickly as possible.”

Read the full supplemental briefing letter here.

The U.S. Supreme Court already requested supplemental briefing after the North Carolina Supreme Court decided to rehear the remedial decision in Harper v. Hall, the underlying case to Moore. It again requested briefing last week after the state court granted GOP lawmakers’ request to not only reverse its December 2022 decision (Harper II) protecting voters from partisan gerrymandering but to also overturn its February 2022 decision (Harper I) arguing the standard articulated in that matter was flawed.

The supplemental brief filed today by Neal Kumar Katyal, a partner with Hogan Lovells and co-counsel with Southern Coalition for Social Justice (SCSJ) representing Plaintiff Common Cause, states the North Carolina Supreme Court’s ruling in Harper should have no effect on Justices’ ability to rule in Moore.

“Because of the two-year federal election cycle and the need to resolve election disputes well in advance of elections, it is not clear that this Court could resolve this issue with a different vehicle,” Katyal wrote in the briefing. “Dismissing this case would thus create a danger that the issue would evade this Court’s review yet again or that this Court would be required to address the issue in the context of an emergency application with limited briefing, no argument, and insufficient time to decide an issue of this importance.”

Voting rights advocates have called Moore’s ISLT argument a grave threat to democracy. The legislators who subscribe to this theory pervert the Elections Clause in the U.S. Constitution to assert that state legislatures alone have the power to determine how federal district maps should be drawn, and furthermore that state courts cannot intervene in that process, nor can state constitutions be enforced if they are contrary to the will of a group of lawmakers who seek to entrench their power.

“The U.S. Supreme Court should toss the nonsensical ‘independent state legislature theory’ into the dustbin where it belongs — and there’s no better time than now when we aren’t on the eve of a major election,” said Bob Phillips, Executive Director of Common Cause North Carolina. “The people of North Carolina deserve to know that our constitutional freedoms will withstand attacks by extremist politicians.”

A decision in Moore is expected by the end of the Supreme Court’s term later this summer.

“Checks and balances are the foundation this nation was built on, and ensure that power rests with the people of this country,” said Kathay Feng, Common Cause’s Vice President of Programs. “The Supreme Court must rule on our case and extinguish this flimsy, dangerous attempt by power-crazed politicians to ignore the will of voters.”

“Even though the new majority on the NC Court has signaled it will no longer protect voters from legislative overreach, state courts and state constitutions can and should play a crucial role in protecting voting rights,” said Hilary Harris Klein, Senior Counsel for Voting Rights at SCSJ. “The Court should take this opportunity to confirm these protections apply in all elections, and reject the ISLT once and for all.”

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The Southern Coalition for Social Justice, founded in 2007, partners with communities of color and economically disadvantaged communities in the South to defend and advance their political, social, and economic rights through the combination of legal advocacy, research, organizing, and communications. Learn more at southerncoalition.org and follow our work on Twitter, Facebook, and Instagram.