Arizona AG Mark Brnovich is backing the North Carolina legislature's "independent state legislature" theory at the U.S. Supreme Court. Photo by Al Drago | Getty Images
Arizona Attorney General Mark Brnovich joined 12 other Republican attorneys general backing North Carolina’s GOP-led legislature in a U.S. Supreme Court case that could drastically alter how federal elections are conducted, handing more power to state legislatures and blocking state courts from intervening.
The case, Moore v. Harper, will be heard by SCOTUS later this year and involves a fringe legal theory called the “independent state legislature theory.” Lawmakers in North Carolina used this theory in an attempt to dodge a state court ruling that struck down gerrymandered voting maps in a lawsuit filed by Common Cause North Carolina.
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The “independent state legislature theory” asks that SCOTUS reverse legal precedents that allow courts to review if state lawmakers broke the law when creating election policies. If that happens, state courts could be disallowed from reviewing voting maps or deciding if voting hours should be extended.
Brnovich and others argue in their brief that “prescribing the times, places, and manner of federal elections is fundamentally a legislative role” set forth in the U.S. Constitution and that the courts have no role in elections — even overseeing the laws governing them.
The legal theory also has ties to 2020 election denialism, as it was pushed by allies of former President Donald Trump to toss out election results in swing states. It would also set the pretext for states to refuse to certify election results and select their own slate of electors.
State bans on gerrymandering in states like Florida, Ohio and North Carolina could die, as could the Arizona Independent Redistricting Commission in Arizona. That panel, which voters created when they amended the state constitution in 2000, voted last week to file its own brief with the court opposing North Carolina’s position.
The filing by the attorneys general tries to stake out a position that redistricting panels like Arizona’s — which was upheld by the Supreme Court in a 2015 ruling — would still be legal even if courts have no oversight of election laws, as its creation was “legislative” in nature, thus protecting it from destruction by any ruling.
States like California and Michigan and other states which have constitutional provisions with the right to a secret ballot could also see those provisions wiped out by a ruling in favor of North Carolina Republicans, according to the Brennan Center for Justice.
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