Attorney General Bonta, National Coalition Blast Extreme Legal Theory Threatening to Undermine Democracy, Free and Fair Federal Elections

Thursday, October 27, 2022
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OAKLAND – California Attorney General Rob Bonta today joined a national coalition of 22 attorneys general in an amicus brief in defense of fundamental legal protections that safeguard free and fair federal elections across the country. Filed before the U.S. Supreme Court in Moore v. Harper, the friend-of-the-court brief pushes back on an extreme legal theory put forward by North Carolina legislators who argue that state courts and other branches of government should have no authority in matters relating to federal elections. As the amicus brief explains, that theory contradicts historical practice and threatens to undermine our nation’s democratic system of checks and balances.

“The extreme legal theory being put forward in this case is a recipe for disaster for elections nationwide,” said Attorney General Bonta. “Our democracy is built on a system of checks and balances. Allowing state legislatures to ignore other branches of state government in setting rules for federal elections — bypassing the will of the people and state constitutions — runs counter to the history and practices of our nation. States across the country run elections not just through legislation, but through their state constitutions, judicial decisions, voter initiatives, and state and local elections officials. Common sense and the law are clear: States should not be forced to abandon election processes that work. I urge the U.S. Supreme Court to join with the North Carolina Supreme Court in protecting our current system of free and fair elections.”

The case currently before the U.S. Supreme Court stems from two consolidated challenges to the North Carolina state legislature’s congressional redistricting maps passed in 2021. The plaintiffs in the underlying case successfully challenged the maps on the basis of partisan gerrymandering that violated the North Carolina Constitution. Following initial proceedings in the case that ultimately reached the North Carolina Supreme Court, the superior court subsequently ordered the North Carolina General Assembly to produce interim remedial maps that complied with the state’s laws. However, the state legislature’s remedial maps were again found to be unlawful and in violation of North Carolina’s Constitution. The superior court then empaneled a bipartisan group of three former state judges to serve as special masters who drew a new congressional redistricting map that was adopted as an interim map for 2022. However, the North Carolina legislators involved in the case subsequently sought review in the U.S. Supreme Court, arguing that — under the “independent state legislature” theory — only the state legislature had the authority to determine the state’s congressional maps, unconstrained by the state constitution.

In the multistate brief filed before the U.S. Supreme Court, the coalition makes it clear that the "independent state legislature" theory ignores a lengthy history of states relying on many different institutions of state government — not just state legislatures — to issue and implement election rules. If carried to its extreme, the so-called “independent state legislature” theory could destabilize state election administration by subjecting countless state election rules to constitutional challenges, potentially creating an untenable scheme under which state and federal elections — which are usually held on the same days in the same polling places using the same ballots — would operate under different rules. Fundamentally, the theory put forward by the North Carolina legislators involved in the case is divorced not only from how states have run elections in the past, but also from how states run elections now. Without checks and balances, state legislatures could, among other things, violate their own constitutions, override state judicial precedent, and cast aside voter approved initiatives in matters related to federal elections.

In the amicus brief, the attorneys general assert:

  • State constitutions, courts, and officials have historically played an integral role in regulating federal elections;
  • The theory pushed forward by North Carolina legislators threatens states’ ability to administer federal elections;
  • State constitutions, courts, executive officials, and others routinely set rules governing elections;
  • The theories offered by petitioners and their amici would undermine state sovereignty and could upend existing election administration; and
  • The U.S. Supreme Court should affirm the judgment of the North Carolina Supreme Court.

In filing the amicus brief, Attorney General Bonta joins the attorneys general of Illinois, the District of Columbia, Colorado, Connecticut, Delaware, Hawaii, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin.

A copy of the amicus brief is available here.

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