Attorney General Phil Weiser joins coalition of 22 attorneys general backing States’ ability to enforce their constitutions to ensure free and fair elections
Oct. 27, 2022 (DENVER) – Attorney General Phil Weiser today joined a coalition of 22 attorneys general in filing a friend of the court brief in Moore v. Harper, a case in which the U.S. Supreme Court will decide whether to adopt the radical “independent state legislature theory” and give state legislators the sole, unchecked authority to make election rules at the expense of voters and other state institutions.
The U.S. Constitution provides that a state’s legislature may set rules governing federal elections. But state constitutions, courts, and officials have historically played an integral role in regulating federal elections. The Supreme Court has never questioned that a state court has the power to rule on election statutes and state constitutional provisions.
In this case, the North Carolina Supreme Court ruled that the state’s badly gerrymandered congressional maps violated the state constitution. At the request of the North Carolina state legislators, the U.S. Supreme Court agreed to review the case and rule whether the North Carolina Supreme Court has the authority to prohibit partisan gerrymandering. The North Carolina state legislators argue that only state legislatures—not other actors like state supreme courts, executives, or voters—can make or interpret election rules.
While the coalition of attorneys general is supporting North Carolina, its voters, and voting-rights organizations in their challenge, Weiser said the outcome of this case will have nationwide implications for protecting the right to vote and ensuring all eligible Americans can make their voices heard.
“As we argued in the faithless electors case in 2020, the States have the exclusive power to appoint electors in Presidential elections, and state legislatures cannot select electors after votes have been counted. If the Court embraces the independent state legislature theory, it could have far-reaching and unpredictable consequences for the appointment of electors, administering elections, and even our state’s independent redistricting commission,” Weiser said. “We cannot toss out 230 years of constitutional tradition and legal precedent in favor of a dangerous theory that threatens to wreak havoc, undermine how states choose to govern themselves, and disrupt established elections practices.”
The independent state legislature theory is gaining traction among conservative academics and jurists, but it lacks any support in American history or precedent of the U.S. Supreme Court. The theory would unravel states’ election processes and impede officials’ ability to administer free and orderly elections.
Weiser is joined by attorneys general from California, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin.
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