The Justice Department has asked the Supreme Court to reject a legal theory pushed by Trump supporters


The Biden administration asked the Supreme Court on Wednesday to reject a legal theory pushed by supporters of former President Donald Trump in an effort to overturn the 2020 presidential election that could change the future of the election.

The Justice Department’s overtime filing on the doctrine of so-called independent state legislatures, the case in point, comes less than two weeks after the November midterm elections and before arguments in the Dec. 7 dispute.

A deadline was set for Wednesday for “friends of the court briefs” on the critical theories.

Proponents of the theory argue that state legislatures should be able to set rules for federal elections without being controlled by state constitutions, either as interpreted by state courts or through the operation of commissions created in state constitutional reforms.

Voting rights groups fear that if the court were to side with the doctrine’s proponents, it could give rogue state legislatures the ability to run unchecked when it comes to federal election rules and fundamentally change the election law landscape.

Solicitor General Elizabeth Prelogar, drawing on the historical tradition of appealing to the court’s most conservative members, argued in the new filing that “more than two centuries of practice confirms that state legislatures are subject to state constitutional constraints” when exercising their authority. the constitution

Democrats hope that even before the Supreme Court rules on the issue this term, Republicans will cite the theory in midterm litigation.

Veteran election litigator and top Democratic attorney Marc Elias said he expects Republicans to rely on the theory in election challenges in the coming weeks.

“We’ve seen a huge increase in Republican lawsuits leading up to the midterm elections, and a surprising number of these lawsuits involve claims from the Independent State Legislature,” he said in an interview with CNN Wednesday night.

Calling it Republicans’ latest “litigation obsession,” Elias said the theory “has no place in our election jurisprudence.”

“It is important that the court closes the door on this fringe theory and recognizes the essential role of judicial review in our democratic system,” said Elias.

On the surface, the case before the justices presents a dispute over redistricting outside of North Carolina, a lower court decision that overturned the state’s congressional map. The court struck down the map – calling it an illegal partisan gerrymander – and replaced it with a more Democratic-friendly map drawn by the courts.

Republican lawmakers in North Carolina are urging the justices to reverse the lower court. They refer to the Constitution’s Election Clause, which stipulates that rules governing the “manner of elections” must be established in each state legislature.

According to the theory, state legislatures should be able to set rules without court intervention.

Traditionally, parliaments have established the basic rules for conducting elections, but they have not acted alone or have the last word. Established processes have involved election administrators and state courts.

But the strictest reading of the theory of independent state legislatures holds that state courts, when it comes to federal elections, must stay out.

A majority of the North Carolina Supreme Court, in ruling against the lawmakers, said lawmakers do not have unlimited power to draw electoral maps. The state court acknowledged that redistricting is delegated to the legislature, but said it must be done “consistent with the State Constitution.”

Republican lawmakers appealed to the US Supreme Court, arguing in court papers that “the text of the Constitution directly answers the question presented in this case.” The Elections Clause provides “ambiguous language” about the manner of federal elections and makes it clear that the rules will be drawn by the legislature.

Attorney John Eastman, who was a key architect of Trump’s push to overturn the election results, has filed a wide-ranging amicus brief urging the justices to accept the theory, even though it has been largely dormant since the 2020 election. Lawyers for the Republican National Committee pushed back at some of Eastman’s arguments, but they also want the justices to adopt one version of the theory.

Other conservatives are critical of the theory.

Retired Republican federal judge J. Michael Luttig is serving as a consultant to the voting rights group, for example. Several other conservatives — retired Judge Thomas Griffith, former Missouri Sen. John Danforth, former Deputy Attorney General Larry Thompson, among others — weighed in with a friend of the court brief to support the groups.

In an amicus brief, they acknowledged that the current Supreme Court case may not affect post-election actions regarding presidential electors. But they feared that if the Supreme Court emboldens state lawmakers on the voting rules issue, it could eventually open the door to new challenges to the results after the election.

They also said that unless the Supreme Court resolves the issue now, it could lead to more litigation in 2024, echoing the chaos of the 2020 election.

Richard Bernstein, the conservative attorney who wrote the brief, said that if the court adopted an “excessive reading” of the Elections Clause, the nation would face waves of federal election litigation every two years.

“If the Supreme Court weakens the state courts in this case, the justices will encourage both state legislatures and losing candidates to try to steal future elections,” he said.

Attorneys at New York University School of Law’s Brennan Center for Justice referred to the Independent State Legislature theory as “fringe” in a brief to support voting rights groups, and argued that hundreds of state election laws and policies could be vulnerable if the court. take a strict reading of the doctrine. The rules cover issues such as the establishment of district boundaries, voter registration, location of polling stations, standards for testing election equipment, chain of custody of ballots, and vote counting processes.

“To avoid such confusion, the Court need only accept the status quo in all 50 states for the past 200 years and affirm the decision below,” the brief said.

Also, former Republican California Gov. Arnold Schwarzenegger — a longtime critic of what he calls “the pernicious effects of partisan gerrymanders” — weighed in against the theory. His lawyers said the doctrine “would overturn this Court’s long-standing precedent for States’ checks and balances in exercising congressional redistricting legislative power — through popular referendums, gubernatorial vetoes and independent redistricting commissions.”

On Twitter, he was more honest.

“You have to be polite in Skotus,” he said he wrote. “But here are my unfiltered thoughts: Honestly, this theory is crazy.”