A Manatt team led by Nathaniel Bach and including Matthew Bruno and Tina Lapsia filed an amicus brief with the U.S. Supreme Court in Moore v. Harper on behalf of and in collaboration with leading election-law expert UCLA Law Professor Richard L. Hasen. Manatt's and Hasen’s brief highlights the major implications this case may have on voting rights, arguing that accepting the so-called “independent state legislature” theory advanced by petitioners would result in a flood of new federal election litigation and a legitimacy crisis for the federal judiciary, potentially paving the way for election subversion.

Moore v. Harper centers around whether the North Carolina Supreme Court has the authority to strike down a gerrymandered congressional map as violating the state constitution. Should the Court accept petitioner’s “independent state legislature” theory, it could end the ability of state courts to interpret their own state’s election laws as applied to federal elections.  

In the amicus brief, Manatt and Hasen argue against petitioners’ theory, noting that state legislatures alone cannot “regulate” federal elections because there is so much detail for conducting elections simply absent from statutory text, and interpretation by state election administrators and state courts is routine and necessary.  The brief discusses the recent upswing of election-related cases on the Supreme Court’s emergency docket and discusses how this case could open the floodgates for new litigation related to the interpretation of state election laws on numerous election-related matters, including early voting, absentee voting, mail-in balloting, electioneering, redistricting, and the mechanics of normal election administration. “In other words, Petitioners’ theory would invent an entirely new constitutional cause of action, significantly burdening federal courts,” the brief states.  

Access Manatt’s complete amicus brief here.  

For additional information, read a Slate article coauthored by Bach on this case here. 
 

JUNE 30 UPDATE: The U.S. Supreme Court issued its decision in Moore v. Harper on June 27, 2023 rejecting North Carolina’s extreme version of the “independent state legislature theory.”  It held that “the federal elections clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections and therefore did not bar the North Carolina Supreme Court from reviewing the North Carolina legislature’s congressional districting plans for compliance with North Carolina law.”
 
Read more about this decision here and here.

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