WASHINGTON, D.C. — On Wednesday, Oct. 26, the second round of amicus “friend of the court” briefs were submitted in Moore v. Harper, bringing the total number of amicus briefs filed to 69. The case involving North Carolina’s congressional redistricting gives the U.S. Supreme Court the opportunity to consider the fringe independent state legislature (ISL) theory, which argues that state legislatures have special authority to set federal election rules free from interference from other parts of the state government, specifically state courts.
Amicus briefs are filed by individuals or organizations that are not parties in the case but have an interest in the outcome. They can often present new data, potential ramifications and legal arguments. In Moore, a total of 69 amicus briefs were submitted — 16 in support of Moore that embrace the ISL theory, 48 in support of Harper that repudiate the ISL theory and five in support of neither party.
The deadline for amicus briefs submitted in support of Moore was Sept. 6. These briefs urge the Court to adopt the ISL theory, to varying degrees of intensity. Some of the notable groups and individuals who submitted briefs in favor of the ISL theory include:
- America First Legal Foundation (a group founded by Stephen Miller and Mark Meadows, high level staffers of former President Donald Trump);
- American Legislative Exchange Council;
- Citizens United;
- Claremont Institute’s Center for Constitutional Jurisprudence (brief written and submitted by John Eastman);
- Honest Elections Project (a group linked to Leonard Leo, a longtime Federalist Society leader and right-wing funder);
- The Republican National Committee, National Republican Congressional Committee, National Republican Redistricting Trust and North Carolina Republican Party;
- Republican Caucus of the Pennsylvania state Senate and Republican state lawmakers from Missouri, Pennsylvania, South Carolina and Texas and
- 13 Republican state attorneys general.
Amicus briefs in favor of the Harper parties were due today, Oct. 26. These briefs argue in favor of upholding the North Carolina Supreme Court’s decisions to strike down the state’s gerrymandered congressional map and redraw it and against any embrace of the ISL theory. Some of the notable groups and individuals who submitted amicus briefs include:
- The American Civil Liberties Union (ACLU) and ACLU of North Carolina;
- League of Women Voters of the United States;
- National Association of Counties, National League of Cities, U.S. Conference of Mayors and the International City/County Management Association;
- FairDistricts Now;
- Civic and racial justice groups, including the Lawyers’ Committee For Civil Rights Under Law, Asian American Legal Defense and Education Fund, LatinoJustice, NAACP and Native American Rights Fund;
- Brennan Center for Justice at NYU School of Law;
- Constitutional Accountability Center;
- U.S. Sen. Sheldon Whitehouse (D-R.I.) and Rep. Hank Johnson (D-Ga.);
- A group of 20 senators led by U.S. Sen. Amy Klobuchar (D-Minn.);
- 13 Democratic secretaries of state;
- 22 Democratic state attorneys general;
- Former California Gov. Arnold Schwarzenegger (R);
- A group of former elected and appointed Republican officials;
- Retired four-star admirals and generals and former service secretaries of the U.S. Armed Forces;
- Current and former election administrators and
- Numerous professors and legal scholars.
Additionally, several groups submitted briefs in favor of neither party, refusing to weigh in on the specifics of the North Carolina redistricting case and instead commenting on other legal aspects of the ISL theory. Notably, a bipartisan group of state Supreme Court justices submitted a brief in support of neither party that flatly rejects the ISL theory’s interpretation of the U.S. Constitution’s Elections Clause: “Neither the textual reference to the ‘Legislature,’ nor contemporary historical understandings and practices, nor the Framers’ intentions, nor structural norms, nor this Court’s precedent supports the view that the Elections Clause displaces the States’ power to authorize their state courts to review their legislature’s regulations of congressional elections for conformity with their state constitutions, and to issue appropriate remedies.”
The number of amicus briefs and the frequency of U.S. Supreme Court justices citing them in final decisions has increased over the past few decades; it’s not uncommon for justices to adopt the language or legal arguments embedded in these briefs. In a 2021 law review article, Whitehouse discussed this phenomenon and concluded that the “amicus brief is now a powerful lobbying tool for interest groups.”