Secretary of State Jena Griswold Leads Amicus Brief in Supreme Court Case that Could Give Extreme State Legislatures Unlimited Power to Regulate Federal Elections

Amicus Brief in support of respondents of Moore v. Harper is Co-signed by Thirteen Secretaries of State from Across the Nation

Denver, October 26, 2022 - Colorado Secretary of State Jena Griswold led a coalition of 13 Secretaries of State in filing an amicus brief with the United States Supreme Court in Moore v. Harper.

The case before the Supreme Court considers the “independent state legislature” theory, and whether State Courts are prohibited under the United States Constitution from reviewing state election laws. If upheld as legitimate, the adoption of the theory could enable extreme state legislatures to regulate federal elections by whatever means they see fit – extremely gerrymandered district maps, blatant voter suppression, unfair vote counting practices, and more.

In the amicus brief, the Secretaries express grave concern over the merits of the so-called “Independent State Legislature” theory.

“Petitioners’ theory that we’ve all been wrong for the last 230 years would create a crisis of finality in the states. Settled case law would be up in the air. Resolved questions would be reopened for review. And whether prior state case law resolving election disputes for federal candidates continues to apply would be uncertain and subject to reexamination,” said the Secretaries in the amicus brief.

The amicus brief argues:

1. The Supreme Court has consistently respected states’ separation of powers and approved state judicial review over election laws.
2. Without exception, state courts across the country interpret state election laws in federal elections.
3. Adoption of an “Independent State Legislature” theory would cause unprecedented election administration problems and would create massive uncertainty and confusion.

“All states have built up substantial reliance on the founding principles and [the Supreme Court’s] opinions that have reaffirmed state legislature’s regulations of elections are subject to the checks and balances of state law. Dismantling those legal regimes now based on a mistaken legal theory alien to our country’s history and this Court’s precedent would have far-reaching and unpredictable consequences on our country’s elections,” reads the amicus brief, in part.

The thirteen Secretaries of State that co-signed the amicus brief filed by the Colorado Attorney General for the Colorado Secretary of State represent California, Colorado, Connecticut, Maine, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington. That Secretaries of State representing diverse states and constituencies signed onto this brief underscores the importance of this ruling and its potential implications for American Democracy.

To read the case before the Supreme Court, click here. To read the complete amicus brief submitted by Secretary of State Jena Griswold and co-signed by 12 additional Secretaries of State, click here.