Carolyn Shapiro, Dan Tokaji, and I are the amici in this brief in Moore v. Harper, represented by Harvard Law School’s Election Law Clinic. Our brief highlights the doctrinal and practical mayhem that would ensue if federal courts were to suddenly insert themselves into matters of state law, as dictated by the independent state legislature theory. Here’s an excerpt from the brief’s introduction:

Petitioners’ gloss on ISLT provides courts with no manageable standards. Petitioners propose a version of ISLT that limits the application of what they describe as “vague” constitutional provisions. But they offer no clear guidance for how to tell when a constitutional provision is so vague, such that state courts are prevented from ordinary judicial review. The best attempts of their amici to identify a clear statement rule are similarly opaque and would disrupt centuries of state constitutional law.

ISLT is not just a matter of the allocation of power within a state, instead it effects a massive shift from state to federal courts. It undermines the ordinary processes of judicial review and reallocates questions of state law into the federal courts, implicating concerns key to Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), particularly forum-shopping and the inconsistent administration of state law.

ISLT threatens to decimate the conduct of elections across the country by effectively creating two sets of rules for administering elections and by destroying legislative delegation. ISLT could even render inoperable the very functioning of election administration systems nationwide.

Finally, ISLT also threatens to federalize election disputes, overburdening the federal judiciary and potentially upending approaches to state statutory interpretation without a clear replacement. And ISLT creates questions about a state legislature’s ability to bind its own hands in regulating federal elections. These ambiguities risk involving the federal courts in fundamental questions of state governmental design—questions that the federal Constitution leaves to the states.