October 26, 2022

Sen. Whitehouse and Rep. Johnson Zero In On Opaque Web of Election Deniers and Vote Suppressors Peddling Sham Legal Theory in High-Stakes Election Case

In amicus brief, Courts Subcommittee Chairmen expose chorus of interconnected groups calling on SCOTUS to unleash chaos in American elections

Washington, D.C. – U.S. Senator Sheldon Whitehouse (D-RI) and Congressman Hank Johnson (D-GA-04), Chairmen of the Senate and House Judiciary Courts Subcommittees respectively, today filed an amicus brief with the Supreme Court in Moore v. Harper, a pending high-stakes partisan gerrymandering case with the potential to unleash chaos in American elections.

In their brief, Whitehouse and Johnson reveal how the individuals and funders behind various amicus curiae—or “friend of the court”—briefs filed in the case fail to disclose crucial information.  In particular, many of the filers obscure from the Court and the public how they previously used the fringe legal theory they are peddling in Moore v. Harper in their efforts to overturn the 2020 presidential election—and how they would weaponize adoption of that theory to turbocharge future election subversion and voter suppression.  Also undisclosed are the connections between the so-called “Honest Elections Project,” which filed an amicus brief pushing the debunked theory, and the dark-money network run by Leonard Leo to stack the federal judiciary with far-right judges and justices, including several sitting members of the Supreme Court.

“This case swarms with amicus briefs supporting petitioners that elide a salient fact: the doctrine they encourage this Court to adopt—the ‘independent state legislature’ theory—is one of the fringe legal theories deployed in a failed legal plot to overturn the results of the 2020 presidential election.  Many of the petitioners’ amici actually attempted to undermine the 2020 election by relying on this theory.  Other amici share connections with groups and individuals who played a role in those attempts.  Still others are presently engaged in voter-suppression and election-subversion efforts.  Rarely has such a noxious assemblage of amici appeared before this Court, and their secrecy about their funders and connections does this Court a grave disservice,” wrote Whitehouse and Johnson.

In Moore v. Harper, the Supreme Court will rule on whether the North Carolina Supreme Court has the ability to strike down the state legislature’s illegally gerrymandered congressional map.  Last year, North Carolina’s Republican-controlled state legislature attempted to lock in an overwhelming Republican majority of the state’s fourteen congressional seats through an extreme gerrymander of the congressional districts.  The state legislators contend that a debunked interpretation of the U.S. Constitution known as the “independent state legislature theory” renders the state’s courts powerless to rule on matters related to federal elections.

Adoption of the fringe independent state legislature theory would take away one of the only remaining remedies American citizens have to fight partisan gerrymandering.  It could also cause massive chaos in elections by allowing state legislatures to disregard their state constitutions, giving them unprecedented power to enact voter suppression laws and upend basic voting processes.  Versions of this theory played a key role in attempts to overturn the 2020 election, with election deniers arguing that it gave state legislators and judges the authority to overturn election results or submit “fake” electors.  A Supreme Court decision adopting the fringe theory could supercharge similar efforts in future elections.

Whitehouse and Johnson provide information in their brief about various amici that was not otherwise disclosed to the Court.  Several amici urging the Court to adopt the independent state legislature doctrine pushed arguments based on that theory in attempts to overturn the 2020 election, while other amici have engaged in or are connected through common funders and personnel to voter suppression efforts that the doctrine would fuel.

Whitehouse and Johnson also shine a light on the amicus brief submitted by the “Honest Elections Project”—the “fictitious name” of an organization central to the dark-money network run by Leonard Leo.  Leo’s network has spent hundreds of millions of dollars to reshape the federal judiciary by packing it with handpicked nominees.  The appearance of the organization before the Court via a “fictitious name” and without disclosure of the organization’s connections to several members of the Court deprives the justices and public of information that is vital to assessing possible ethics concerns.

Last year, Whitehouse and Johnson introduced the Assessing Monetary Influence in the Courts of the United States (AMICUS) Act to bring transparency to the lobbying of federal judges by big special interests.  The bill would require disclosure of the identity of funders of amicus briefs, and block amicus filers from making gifts or providing travel to court of appeals judges or Supreme Court justices.  Whitehouse and Johnson have also introduced the Supreme Court Ethics, Recusal, and Transparency Act to enact stronger recusal standards and to require the Supreme Court to implement rules governing ethical issues raised by amicus briefs.

Read the full amicus brief here.

Meaghan McCabe (Whitehouse), 401-453-5294

Andy Phelan (Johnson), 404-593-9126

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