Amicus Curiae Brief — Timothy K. Moore, in His Official Capacity as Speaker of the North Carolina House of Representatives, et al., Petitioners v. Rebecca Harper, et al.

Supreme Court briefOct 26, 2022

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No. 21-1271

IN THE

Supreme Court of the United States

TIMOTHY K. MOORE, in his official capacity as

Speaker of the North Carolina House of

Representatives, et al.,

Petitioners,

REBECCA HARPER, et al.,

Respondents.

On Writ of Certiorari to the

Supreme Court of North Carolina

BRIEF OF RETIRED FOUR-STAR ADMIRALS

AND GENERALS, AND FORMER SERVICE

SECRETARIES OF THE ARMED FORCES AS

AMICI CURIAE IN SUPPORT OF

RESPONDENTS

ILANA H. EISENSTEIN

Counsel of Record

WHITNEY CLOUD

KATHLEEN S. KIZER

M. DAVID JOSEFOVITS

DLA PIPER LLP (US)

One Liberty Place

1650 Market Street

Suite 5000

Philadelphia, PA 19103

(215) 656 3351

Ilana.Eisenstein@us.dla piper.com

October 26, 2022

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .............................................. ii

INTEREST OF AMICI CURIAE........................................1

SUMMARY OF ARGUMENT ...........................................9

ARGUMENT.....................................................................11

I. Adoption of the Independent State Legislature Theory Would Undermine Election

Integrity and Harm National Security ...................11

A. The Independent State Legislature

Theory Will Damage Public Faith in

Elections ..........................................................11

B. A Lack of Election Integrity Threatens

the Military’s Ability to Operate

Effectively .......................................................17

C. A Lack of Election Integrity Exacerbates

Threats to National Security ............................20

II. The Independent State Legislature Theory

Will Disenfranchise Active Duty Military

Service Members and Their Families ....................24

CONCLUSION .................................................................29

TABLE OF AUTHORITIES

Page(s)

Cases:

Amer. Legion v. Amer. Humanist Ass’n,

139 S. Ct. 2067 (2019) ................................... 12, 14

Arizona State Legislature v. Arizona Indep.

Redistricting Comm’n, (AIRC),

576 U.S. 787 (2015) ....................................... 12, 16

Carrington v. Rash,

380 U.S. 89 (1965) ............................................... 28

Davis v. Bandemer,

478 U.S. 109 (1986) ............................................. 16

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) ......................................... 16

State v. Arctic Village Council,

495 P.3d 313 (Alaska 2021) ................................ 28

Vieth v. Jubelirer,

541 U.S. 267 (2004) ............................................. 16

Other Authorities

Bipartisan Policy Center, Deterring Threats to

Election Workers (July 2022), https://

bipartisanpolicy.org/report/deterringthreats-to-election-workers/ ............................... 22

Brennan Center for Justice, Local Elections

Official Survey (Apr. 2021),

https://www.brennancenter.org/

our-work/research-reports/local-electionofficials-survey .................................................... 22

iii

Brennan Center for Justice, Local Elections

Official Survey (Mar. 2022),

https://www.brennancenter.org/our-work/

research-reports/local-election-officialssurvey-march-2022 ............................................. 22

Brennan Center for Justice, State Voting

Laws, Overview (2022), https://www.

brennancenter.org/issues/

ensure-every-american-can-vote/votingreform/state-voting-laws..................................... 24

Brennan Center for Justice, Voting Laws

Roundup (May 2022), https://www.

brennancenter.org/our-work/researchreports/voting-laws-roundup-may-2022 ............. 13

C. Montesquieu, The Spirit of the Laws 152 (T.

Nugent trans. 1949) (1748)................................. 15

Campaign Legal Center, New Bipartisan Poll

on Gerrymandering and the Supreme Court

(Jan. 25, 2019), https://campaign

legal.org/sites/default/files/201901/CLC%20Bipartisan%20Redistrictig%20

Poll.pdf ................................................................ 16

Emerging Threats to Election Administration:

Hearing before S. Comm. on Rules and Admin,

117th Cong. (Oct. 26, 2021) (Testimony of

Matthew Masterson) .......................................... 22

Federal Voting Assistance Program, 2020 PostElection Report to Congress,

https://www.fvap.gov/info/

reports-surveys/2020-report-to-congress ........... 26

Federal Voting Assistance Program, Post-Election Voting Survey: Active Duty Military

Technical Report 2020, 23,

https://www.fvap.gov/uploads/FVAP/

Reports/FVAP_ADM-Technical-Report2020_FINAL_20210831.pdf .......................... 25, 26

Federal Voting Assistance Program, State of

the Military Voter,

https://www.fvap.gov/info/reportssurveys/StateoftheMilitaryVoter........................ 25

Freedom House, Freedom in the World 2022:

The Global Expansion of Authoritarian Rule

(Feb. 2022), https://freedomhouse.org/

report/freedom-world/2022/global-expansionauthoritarian-rule ............................................... 20

Genevieve Nadeau and Helen White, Independent State Legislatures and Presidential

Elections: Addressing Misconceptions About

Current Law and Prospects for Reform, Just

Security (Aug. 16, 2022), https://www.justsecurity.org/82685/independent-statelegislatures-and-presidential-electionsaddressing-misconceptions-about-currentlaw-and-prospects-for-reform/ ............................ 14

Helen White, The Independent State Legislature Theory Should Horrify Supreme Court’s

Originalists, Just Security (Jun. 30, 2022),

https://www.justsecurity.org/81990/theindependent-state-legislature-theory-shouldhorrify-supreme-courts-originalists/ .................. 15

Howard et al., Defending Elections: Federal

Funding Needs for State Election Security,

Brennan Center for Justice (July 18, 2019),

https://www.brennancenter.org/our-work/

research-reports/defending-elections-federalfunding-needs-state-election-security ................ 22

Kevin Johnson, Russian Hackers Target U.S.

Computer Systems; Feds Say Elections Data

Not Compromised, USA Today (Oct. 22,

2020), https://www.usatoday.com/

story/news/politics/elections/2020/10/22/

election-2020-new-wave-russian-hackingefforts-detected-officials/3735228001/

(discussing attempts to interfere with the

2020 general election)......................................... 23

Letter From Former High-Ranking National

Security Officials To Congress: Election Subversion Poses National Security Threat,

Medium (Nov. 9, 2021), https://medium.com/

@FormerU.S.NatSecOfficials/letter-from-former-high-ranking-national-security-officialsto-congress-election-subversion-poses69a269962ac ........................................................ 23

Miriam Seifter, Countermajoritarian

Legislatures, 121 Colum. L. Rev. 1733 (2021) ... 16

Nicole Perlroth and David E. Sanger, Ransomware Attacks Take On New Urgency Ahead

of Vote, New York Times, (Nov. 16, 2020),

https://www.nytimes.com/2020/09/27/

technology/2020-election-securitythreats.html ........................................................ 23

Open Letter from Former Secretaries of Defense and Former Chairmen of the Joint

Chiefs of Staff, To Support and Defend:

Principles of Civilian Control and Best Practices of Civil-Military Relations, War on the

Rocks (Sep. 6, 2022), https://warontherocks.com/2022/09/to-support-anddefend-principles-of-civilian-control-andbest-practices-of-civil-military-relations/ ........... 18

Richard Wike, et al, What People Around the

World Like – and Dislike – About American

Society and Politics, Pew Research Center

(Nov. 1, 2021), https://www.pewresearch.org/global/2021/11/01/what-peoplearound-the-world-like-and-dislike-aboutamerican-society-and-politics/ ............................ 21

Saikrishna B. Prakash & John C. Yoo,

The Origins of Judicial Review,

70 U. Chi. L. Rev. 887 (2003).............................. 12

Scott Ikeda, Iranian Hackers Indicted over

2020 US Election Interference, CPO Magazine (Nov. 23, 2021), https://www.cpo

magazine.com/cyber-security/iranian-hackers-indicted-over-2020-us-electioninterference-used-confidential-voterinformation-to-send-targetedmisinformation-and-threats/ .............................. 23

vii

States United Democracy Center, A Democracy

Crisis in the Making 9–10 (Aug. 2022),

https://statesuniteddemocracy.org/wp-content/uploads/2022/08/DCIMAugust2022.pdf ............................................. 14, 15

States United Democracy Center, Democracy

Crisis in the Making: How State Legislatures

are Politicizing, Criminalizing, and Interfering with Election Administration (June 2021

Rpt. & Aug. 2022 Update),

https://statesuniteddemocracy.org/resources/

democracy-crisis-in-the-making-how-statelegislatures-are-politicizing-criminalizingand-interfering-with-elections/#section-2 .......... 13

The Federalist No. 47 at 301 .................................. 11

The Independent State Legislature Theory and

Its Potential to Disrupt Our Democracy:

Hearing Before the H. Com. on H. Admin.,

117th Cong., 1 (Jul. 28, 2022) (written testimony of Carolyn Shapiro) ................................... 14

U.S. Election Assistance Commission to the

117th Congress, Election Administration

and Voting Survey 2020 Comprehensive Report, 74 (Aug. 2021), https://www.eac.gov/

sites/default/files/document_library/files/2020_EAVS_Report_Final_

508c.pdf ......................................................... 26, 28

INTEREST OF AMICI CURIAE1

Amici are retired four-star admirals and generals,

and former service secretaries of the U.S. armed forces.

Amici are deeply interested in this case because

adoption of the independent state legislature theory

threatens to undermine election integrity and poses a

profound threat to national security. Amici are also

concerned that adoption of the independent state

legislature

theory

would

result

the

disenfranchisement of active duty military service

members and their families by unduly restricting

mail-in voting. Amici’s submissions are based on their

collective experience serving in and leading our

military, and on their collective interest in

safeguarding national security and the votes of active

duty service members. Amici’s short biographies

listed below only begin to describe their distinguished

service to our country.

Admiral Steve Abbot, United States Navy

(Retired): Admiral Abbot graduated from the United

States Naval Academy in 1966, deployed to Vietnam,

and began a career of over 35 years with the United

States Navy. He was chosen to study at Oxford as a

Rhodes Scholar, and he completed U.S. Air Force Test

Pilot School. He is an accomplished commander,

overseeing the aircraft carrier USS Theodore

Roosevelt (CVN 71) during Operation Desert Storm,

commanding the Theodore Roosevelt battle group

1 No counsel for a party authored this brief in whole or in part.

No person other than amici or their counsel made a monetary

contribution to this brief’s preparation or submission. All parties

have given either blanket consent or have specifically consented

to the participation of amici curiae.

Carrier Group EIGHT, and the Sixth Fleet from 19961998. His final active duty tour was as deputy

commander in chief, U.S. European Command from

1998 to 2000. He retired with the rank of 4-star

Admiral and his awards include the Legion of Merit

and a Bronze Star. Following his retirement in 2000,

Admiral Abbot served as Deputy Homeland Security

Advisor to President George W. Bush from 2001 to

2003, and then served for sixteen years as president of

the Navy-Marine Corps Relief Society, a non-profit

organization assisting sailors, Marines, and their

families.

Admiral Thad Allen, United States Coast Guard

(Retired): Admiral Thad Allen retired in 2010 as the

23rd Commandant of the US Coast Guard. He retired

as an Executive Vice President (2017) and senior

executive advisor (2021) at Booz Allen Hamilton. He

serves on several federal advisory committees. He

chairs the Space-Based Positioning, Navigation, and

Timing Advisory Board, is a member of the Board of

Visitors to the National Intelligence University, and a

member of the Comptroller General’s Advisory Board.

Admiral Allen led the federal responses to Hurricanes

Katrina and Rita and the Deepwater Horizon oil spill.

He led Atlantic Coast Guard forces in response to the

9/11 attacks and coordinated the Coast Guard

response to the Haitian Earthquake. He is a 1971

graduate of the US Coast Guard Academy and holds

master’s degrees from George Washington University

and the MIT Sloan School. He is a recipient of 5

Honorary Doctorate degrees and held the James Tyler

Distinguished Chair of Leadership at the Loy

Institute of Leadership at the Coast Guard Academy

from 2014 to 2021.

Former Secretary of the United States Army

Louis Caldera: Louis Caldera graduated from the

United States Military Academy at West Point in 1978

and served in the Army on active duty from 1978 to

1983. After obtaining a J.D./M.B.A. degree from

Harvard in 1987, Caldera practiced law and was

elected to serve as a California State Assemblyman for

the 46th State Assembly district from 1992 to 1997.

He served in two Senate-confirmed positions in the

Clinton Administration, including as Secretary of the

Army, and in the Obama White House as an Assistant

to the President and Director of the White House

Military Office. Louis Caldera served as President of

The University of New Mexico and has taught law in

California, New Mexico and Washington D.C., most

recently, from 2018 to 2021, as a Distinguished

Adjunct Professor of Law at American University

Washington College of Law. He serves on numerous

nonprofit and public company boards and has served

on a number of educational, foreign policy and

national security commissions, task forces, and study

groups.

Former Secretary of the United States Air Force

Deborah Lee James: Deborah Lee James served as

the 23rd Secretary of the Air Force, appointed by

President Obama in 2013. Before this appointment,

Ms. James worked as an assistant to the Assistant

Secretary of Defense for Legislative Affairs, before

being appointed by President Clinton and confirmed

by the Senate in 1993 to work in the Pentagon as the

Assistant Secretary of Defense for Reserve Affairs. Ms.

James has 30 years of senior homeland and national

security experience not only in the federal government

but in the private sector as well, including President

of Science Applications International Corporation’s

Technical and Engineering Sector, Executive Vice

President and Chief Operating Officer at Business

Executives for National Security, and Vice President

of International Operations and Marketing at United

Technologies. Ms. James now serves as a board

member of various companies and works as an author,

speaker, and strategic advisor.

General Craig McKinley, United States Air

Force (Retired): After 38 years in the Air Force,

General Craig McKinley retired as a four-star general

in November 2012. His last assignment was as the

Chief of the National Guard Bureau, where he also

served as a member of the Joint Chiefs of Staff. In this

capacity, he was a military adviser to the President,

the Secretary of Defense, and the National Security

Council, and he was the Department of Defense’s

official channel of communication to the Governors

and to State Adjutants General on all matters

pertaining to the National Guard. Gen. McKinley was

elected Chairman of the ANSER Board of Directors in

November 2020. He completed his tenure as National

Chair of Employer Support of the Guard and Reserve

on November 14, 2019. General McKinley retired as

the President and CEO of the National Defense

Industrial Association (NDIA) on June 30, 2017. Gen.

McKinley came to NDIA from the Air Force

Association (AFA) where he had served as President

since October 1, 2012.

Former Secretary of the United States Navy

Sean O’Keefe: Sean O’Keefe began his public service

career in 1978 with the Department of Defense and

the United States Senate staff until appointment as

the Department of Defense Comptroller and Chief

Finance Officer in 1989, serving until 1992 when

President George H. W. Bush named him the 69th

Secretary of the Navy. Sean O’Keefe also served in

President George W. Bush’s administration, as

Deputy Director of the Office of Management and

Budget in 2001 and 10th Administrator of NASA from

2001-2005.

Following these Senate confirmed

Presidential appointments, O’Keefe then served as

Chancellor of the Louisiana State University and later

as chairman and CEO of the U.S. subsidiary of the

Airbus Group, the global aerospace corporation. He

is a Fellow of the National Academy of Public

Administration and serves on the board of directors of

the Partnership for Public Service in addition to other

non-profit and corporate boards. He is presently a

member of the Syracuse University faculty at the rank

of University Professor and the Howard and

Louise Phanstiel Endowed Chair in Leadership at the

Syracuse University Maxwell School of Citizenship

and Public Affairs.

Concurrently, he is a

Distinguished Senior Adviser at the Center for

Strategic and International Studies (CSIS), a partner

institution with the Syracuse Maxwell School in

Washington, D.C.

General George Casey, United States Army

(Retired): General George W. Casey, Jr., enjoyed a

41-year career in the US Army following his

graduation from Georgetown University’s School of

Foreign Service in 1970. He is an accomplished soldier

and an authority on strategic leadership. During his

tenure as the Army Chief of Staff, he is widely credited

with restoring balance to a war-weary Army and

leading the transformation to keep it relevant in the

21st Century. Prior to this, from July 2004 to

February 2007, he commanded the Multi-National

Force – Iraq, a coalition of more than 30 countries

where he guided the Iraq mission through its toughest

days.

Currently, he lectures internationally on

leadership to the leaders of national and

multinational corporations and at other business

schools. He also lectures on International Relations at

the Korbel School, University of Denver and serves on

several corporate boards and numerous boards of

organizations that support our servicemen and women,

our veterans, and their families.

General John Jumper, United States Air Force

(Retired):

General John P. Jumper is an

accomplished Air Force Fighter Pilot, Instructor, and

Commander, who served as the 17th Chief of Staff of

the United States Air Force from 2001 to 2005.

General Jumper began his military career as a

distinguished graduate of Virginia Military Institute’s

ROTC program in 1966. He has commanded a fighter

squadron, two fighter wings, a numbered Air Force,

and U.S. Air Forces in Europe and Allied Air Forces

Central Europe, and served as Commander of the Air

Combat Command at Langley Air Force Base, VA.

General Jumper went on to serve at the Pentagon as

Deputy Chief of Staff for Air and Space Operations, as

the Senior Military Assistant to two secretaries of

defense, and as Special Assistant to the Chief of Staff

for Roles and Missions before becoming the Chief of

Staff of the United States Air Force. His tour as Chief

of Staff has spanned operations Enduring Freedom

and Iraqi Freedom. Following his retirement in 2005,

General Jumper joined the Board of Directors of

Science Applications International Corporation in

2007, where his tenure has been marked by the

company’s sustained growth, strong position in key

markets, innovation, and strong customer affinity.

General Tony Zinni, United States Marine Corps

(Retired): General Zinni joined the Marine Corps’

Platoon Leader Class program in 1961 and was

commissioned an infantry second lieutenant in 1965

upon graduation from Villanova University. He held

numerous command and staff assignments that

included platoon, company, battalion, regimental,

Marine

Expeditionary

Unit,

and

Marine

Expeditionary Force command. His staff assignments

included service in operations, training, special

operations, counter-terrorism, and manpower billets.

General Zinni’s 23 personal awards include the

Defense Distinguished Service Medal with Oak Leaf

Cluster; the Distinguished Service Medal; the Defense

Superior Service Medal with two Oak Leaf Clusters;

the Bronze Star with Combat “V” and Gold Star; the

Purple Heart, and more. From 2017 to 2019, General

Zinni agreed to reenter public service as a special

envoy to resolve disputes in the Persian Gulf region.

Admiral James Loy, United States Coast Guard

(Retired): Admiral James Loy led a 45-year career in

public service, graduating from the Coast Guard

Academy in 1964, retiring from the U.S. Coast Guard

in 2002 having served as its Commandant since May

1998. Prior to his position as Commandant, Admiral

Loy served as Coast Guard Chief of Staff from 1996 to

1998, and Commander of the Coast Guard’s Atlantic

Area from 1994 to 1996. Admiral Loy left the Coast

Guard in 2002 to become the first Administrator in

charge of the newly created Transportation Security

Administration (TSA). In 2003, President George W.

Bush nominated Admiral Loy to the position of U.S.

Deputy Secretary of Homeland Security, where he

served until his resignation in 2005.

SUMMARY OF ARGUMENT

Petitioners advocate adoption of a profoundly

destabilizing and undemocratic approach to election

administration. The independent state legislature

theory would undermine election integrity and

diminish public confidence in electoral outcomes.

Centralizing authority over federal elections in the

hands of state legislatures would result in election

chaos by undermining professional nonpartisan

election administrators and undoing hundreds of laws

enshrined in state constitutions, adopted by voter

referenda, or implemented through administrative

rules. Moreover, the jettisoning of judicial review and

state constitutional limitations greenlights extreme

partisan gerrymandering and removes any constraint

on voter suppression in federal elections.

The

predictable outcome is severe damage to election

integrity and public faith in election legitimacy.

The weakening of election integrity creates serious

threats to national security. Civil unrest resulting

from public mistrust of electoral outcomes engenders

calls for military intervention. As former military

leaders, Amici are greatly concerned that

politicization of the military will tarnish its reputation

and decrease public support for the military. Public

mistrust of electoral outcomes also increases political

polarization, demoralizes election workers, and leaves

the democratic institutions they support vulnerable to

foreign interference. It further creates opportunities

for our enemies to sow division and reap the benefit of

a fragmented and divided nation. And because

elections are a cornerstone of democracy, declining

faith in our own elections diminishes the influence and

standing of the United States to advocate for

democracy throughout the world.

The independent state legislature theory also

threatens to disenfranchise military voters. Without

the important checks and balances imposed by state

constitutions, judiciaries, and executives, state

legislatures would be free to pass restrictive

legislation designed to constrain the accessibility of

mail-in voting. These restrictions pose a particular

risk to active duty service members and their families

who rely on the availability of mail-in voting to cast

their ballots and participate in the democracy they

serve and protect.

ARGUMENT

Adoption of the Independent State

Legislature Theory Would Undermine

Election Integrity and Harm National

Security.

The independent state legislature theory advanced

by petitioners undermines election integrity and

exacerbates both domestic and foreign threats to

national security. State constitutions and judicial

review safeguard the fundamental right of citizens to

vote and choose who will represent them through free

and fair elections. Removing these protections and

granting

state

legislatures

unilateral

and

unreviewable power over federal elections would

destabilize election administration and have

foreseeable

domestic

and

foreign

negative

implications for national security.

A. The

Independent

State

Legislature

Theory Will Damage Public Faith in

Elections.

One of the most important features of American

democracy is the system of checks and balances among

the legislature, executive, and judiciary. Our founders

recognized that “[t]he accumulation of all powers,

legislative, executive and judiciary, in the same hands,

whether of one, a few, or many, and whether

hereditary, self-appointed, or elective, may justly be

pronounced the very definition of tyranny.” The

Federalist No. 47, at 301 (James Madison) (Clinton

Rossiter ed., 1961). This is a hallmark of our federal

government, but it is an important and longstanding

feature of state government as well. Saikrishna B.

Prakash & John C. Yoo, The Origins of Judicial

Review, 70 U. Chi. L. Rev. 887, 929–939, 933 n.169

(2003) (describing the rise of state judicial review and

collecting examples of such review in the preconstitutional period).

State constitutions also play a role in constraining

state legislatures. See Arizona State Legislature v.

Arizona Indep. Redistricting Comm’n (AIRC), 576 U.S.

787, 817–818 (2015) (“Nothing in [the Elections]

Clause instructs, nor has this Court ever held, that a

state legislature may prescribe regulations on the

time, place, and manner of holding federal elections in

defiance of provisions of the State’s constitution.”).

States’ constitutions may go “above and beyond” in

protecting the rights of individual citizens. Amer.

Legion v. Amer. Humanist Ass’n, 139 S. Ct. 2067, 2094

(2019) (Kavanaugh, J., concurring).

These safeguards are especially important in the

context of federal elections and impact a citizen’s

fundamental right to vote. Yet, adoption of the

independent state legislature theory would grant

state legislatures plenary authority to regulate federal

elections, unchecked by state-level constraints—

including state constitutions, state courts, citizen

ballot initiatives, and in extreme versions of the

theory, gubernatorial veto.

Stripping away established state-level protections

undermines election integrity by destroying the

longstanding expectation and understanding of voters

and state election officials.

Hundreds, if not

thousands, of election laws could be nullified by the

independent state legislature theory. Moreover, many

of the laws protecting election integrity were adopted

by voters through referenda, incorporated into state

constitutions, or have been relied upon for decades to

safeguard both state and federal elections. But under

the independent state legislature theory, voters may

find these protections discarded and swept aside by

state legislatures unilaterally seeking to pass

restrictive voting laws.2 Without state constitutional

restraints, state legislatures may also interfere in the

nonpartisan administration of elections and thereby

undermine public confidence in election outcomes.3

Moreover, if control over federal congressional

elections is centralized in the hands of the state

legislatures, election officials and state courts would

be constrained in their ability to interpret ambiguous

state statutes to make election administration

workable within the compressed timeframe that often

2 The threat of state legislatures seeking to restrict voting

access is more than theoretical. See, e.g., Brennan Center for

Justice, Voting Laws Roundup (May 2022), https://www.brennancenter.org/our-work/research-reports/voting-laws-roundupmay-2022 (cataloguing restrictive voting laws already proposed

by state legislatures).

3 See, e.g., States United Democracy Center, Democracy Crisis

in the Making: How State Legislatures are Politicizing, Criminalizing, and Interfering with Election Administration (June 2021

Rpt. & Aug. 2022 Update), https://statesuniteddemocracy.org/resources/democracy-crisis-in-the-making-how-state-legislaturesare-politicizing-criminalizing-and-interfering-with-elections/#section-2 (reporting on measures that “represent a

dangerous trend: efforts to increase the ability of partisan actors

to subvert the will of the voters”).

apply.4 State election officials could also be required

to oversee two sets of potentially conflicting rules—

one governing federal elections and another governing

state elections.5 Vote counting may be opened up to

challenge if federal ballot tallies differ from state

ballot tallies, as may happen when applying

conflicting rules. For example, the same ballot could

be ruled insufficient for federal election purposes but

sufficient for state election purposes. 6 Requiring

election officials to administer simultaneous state and

federal elections governed by different rules and

separate ballots engenders uncertainty that will

undermine the fair and effective administration and

regulation of federal elections. The Independent State

Legislature Theory and Its Potential to Disrupt Our

Democracy: Hearing Before the H. Com. on H. Admin.,

117th Cong., 1 (Jul. 28, 2022) (written testimony of

Carolyn Shapiro).

The independent state legislature theory seeks to

diminish (or eliminate) the essential and historic role

of the state judiciary in resolving conflicting

interpretations of election law and in adjudicating

disputes arising under that law. Meanwhile, if

stripped of the long-standing means of resolving

4 Genevieve Nadeau and Helen White, Independent State Legislatures and Presidential Elections: Addressing Misconceptions

About Current Law and Prospects for Reform, Just Security (Aug.

16, 2022), https://www.justsecurity.org/82685/independent-statelegislatures-and-presidential-elections-addressing-misconceptions-about-current-law-and-prospects-for-reform/.

5 States United Democracy Center, A Democracy Crisis in the

Making 9–10 (Aug. 2022), https://statesuniteddemocracy.org/wpcontent/uploads/2022/08/DCIM-August2022.pdf.

6 Ibid.

disputes through judicial review, minimal precedent

exists for how disputes over the validity,

interpretation, or application of state election law

would be resolved by a state legislature. To allow

unchecked action by a single branch defies the

fundamental principle of separation of powers,

because: “there is no liberty, if the judiciary power be

not separated from the legislative and executive.

Were it joined with the legislative, the life and liberty

of the subject would be exposed to arbitrary control;

for the judge would be then the legislator.” C.

Montesquieu, The Spirit of the Laws 152 (T. Nugent

trans. 1949) (1748).

The potential chaos of such a system will inevitably

undermine the integrity of federal elections.

Eliminating long-established pathways for judicial

review of election law and election disputes would

result in confusion that would make it easier to claim

election fraud and cast doubt on election outcomes.7

These problems will exacerbate the growing problem

of partisanship in election administration.8

The protections provided by state constitutions and

state judicial review also strengthen confidence in

electoral outcomes where they limit the excesses of

extreme partisan gerrymandering. Gerrymandering

is anti-majoritarian and deeply undemocratic because

it allows politicians to entrench themselves by

7 Helen White, The Independent State Legislature Theory

Should Horrify Supreme Court’s Originalists, Just Security (Jun.

30, 2022), https://www.justsecurity.org/81990/the-independentstate-legislature-theory-should-horrify-supreme-courts-originalists/.

8 A Democracy Crisis in the Making, supra note 5, at 9.

drawing unfair electoral districts. See AIRC, 576 U.S.

at 824 (gerrymandering violates “the core principle of

republican government, namely, that the voters

should choose their representative, not the other way

around”) (citation and quotation omitted). See also

Miriam Seifter, Countermajoritarian Legislatures,

121 Colum. L. Rev. 1733, 1762–1767 (2021)

(describing

how

gerrymandering,

countermajoritarian tendency of state legislatures,

can lead to outright minority-party control).

Protections at the state level are the only feasible way

to ensure that congressional districts are fairly drawn.

See Rucho v. Common Cause, 139 S. Ct. 2484, 2507

(2019) (acknowledging that state courts applying state

statutes and state constitutions are well-placed to

protect against partisan gerrymandering).

The independent state legislature theory would

grant the state legislatures unreviewable power to

draw congressional districts and would destroy any

attempt by the States to rein in partisan

gerrymandering. Gerrymandering undermines the

public’s faith in elections. Indeed, “[i]ntelligent voters,

regardless of party affiliation, resent this sort of

political manipulation of the electorate for no public

purpose.” Davis v. Bandemer, 478 U.S. 109, 127 (1986)

(Powell, J., concurring in part and dissenting in part),

overruled by Vieth v. Jubelirer, 541 U.S. 267 (2004).

Contemporary polls show that voters across party

lines have unfavorable views of gerrymandering. 9

And yet because the result of gerrymandering is to

9 Campaign Legal Center, New Bipartisan Poll on Gerryman-

dering and the Supreme Court (Jan. 25,

https://campaignlegal.org/sites/default/files/201901/CLC%20Bipartisan%20Redistrictig%20Poll.pdf.

2019),

entrench the incumbent legislators, the legislative

branch is particularly ill-suited to address or

ameliorate the problems partisan gerrymandering

presents. Accordingly, Amici foresee public loss of

faith in radically gerrymandered elections as a

predictable consequence of the independent state

legislature theory.

B. A Lack of Election Integrity Threatens the

Military’s Ability to Operate Effectively.

Amici believe the lack of election integrity and loss

of public faith that would result from adopting the

independent state legislature theory has foreseeable

negative implications for national security. The

public’s trust in elections is essential to the military’s

continued success as an apolitical entity above the fray

of partisan politics.

As an institution subject to civilian control, it is

critically important for the military to remain, and be

perceived, as apolitical and outside of the political

realm. Civilian control of the military places decisionmaking in the hands of democratically elected

leadership.

Such leadership, if it is to govern

effectively, must have confidence in the nonpartisan

nature of the military. But election instability leaves

the military vulnerable to the pulls of partisan politics.

In some recent elections, political actors from both

parties suggested military intervention was needed to

quell civilian unrest in the aftermath of elections.

Because of such calls, a coalition of Former Secretaries

of Defense and Former Chairmen of the Joint Chiefs

of Staff signed an open letter reaffirming that the

military has no role to play in elections and must be

kept separate from partisan political activity.10 Amici,

who are former military leaders, anticipate that calls

for military intervention will only increase in the wake

of further disruption to the election system that would

result from adoption of the independent state

legislature theory.

Amici further believe that even the perception of

politicization would have devastating consequences

for the military’s effectiveness. And a lack of election

integrity may cause politicization of the military even

when the military appropriately decides not to involve

itself in the election process. When large swaths of

voters view an election as illegitimate, necessary

statements by military leaders reaffirming that the

military has no role to play in election outcomes may

be viewed as political acts.

Amici are also gravely concerned that National

Guard units may be called to quell civil disturbances

engendered by a lack of confidence in electoral

outcomes, which would further politicize and

undermine support for the military. When federalized,

State National Guard units are responsive to the

President as commander in chief. But when in their

state roles, they act at the direction of State Governors

who are partisan elected officials and who could deploy

them to quash constitutionally protected speech and

demonstrations against electoral rules and outcomes

10 Open Letter from Former Secretaries of Defense and For-

mer Chairmen of the Joint Chiefs of Staff, To Support and Defend:

Principles of Civilian Control and Best Practices of Civil-Military

Relations, War on the Rocks (Sep. 6, 2022), https://warontherocks.com/2022/09/to-support-and-defend-principles-ofcivilian-control-and-best-practices-of-civil-military-relations/.

that favor one party’s fortunes. This role is anathema

for the military of a democratic society, and the mere

perception of military involvement would further

damage the military’s standing.

A politicized military is unable to operate

effectively. The U.S. armed forces, as an all-volunteer

military of a constitutional democracy, rely on the

popular support of the American people for the

financial and other resources needed for the nation’s

defense. The U.S. armed forces are one of the most

trusted institutions and seen as deserving of such

support, precisely because they conduct themselves

above partisan politics and are solely dedicated to

defending the nation against foreign and domestic

threats.

The military also depends on its ability to recruit a

force from across the political spectrum and deploy

those forces in operations that put service members’

lives at risk. Amici’s experience leading the armed

forces enables them to understand the unique

recruitment needs of the military. They are concerned

that increased politicization of the military will erode

the public’s perception of the apolitical nature of the

military and diminish the military’s continued ability

to field the most qualified force to protect the nation.

Public trust in free and fair elections is therefore

critical to the military’s continued success at staying

above the fray of partisan politics. The independent

state legislature theory will increase the public’s

disillusionment with the electoral process and risk

drawing the military into the political arena.

C. A Lack of Election Integrity Exacerbates

Threats to National Security.

Amici believe that a lack of election integrity poses

a profound threat to national security. Election

instability weakens our standing and influence

around the world. And extreme polarization

emboldens our adversaries and demoralizes our allies.

Amici also recognize that public distrust of elections

and election officials creates opportunities for foreign

and antidemocratic actors to subvert elections.

Elections present the most visible display of our

democratic process and constitutional safeguards.

Harm to this pillar of U.S. democracy compromises

efforts at foreign diplomacy and degrades the nation’s

standing as a leader for freedom and self-governance

on the world stage. Ultimately, loss of faith in

American democracy destabilizes our world thereby

increasing threats to our national security.

The military’s greatest strength stems from its

position as an organ of American democracy. Around

the world, democracy is in retreat, authoritarianism is

on the rise, and for the first time in almost two decades,

the number of non-democratic countries outnumber

that of democratic countries.11 At home and abroad,

respect for American democracy as a model for the

world is waning. A recent Pew Research Center report

shows 72% of Americans and 57% of the median

survey responses from citizens of 16 advanced

11 Freedom House, Freedom in the World 2022: The Global Ex-

pansion

Authoritarian

Rule

(Feb.

2022),

https://freedomhouse.org/report/freedom-world/2022/global-expansion-authoritarian-rule.

democracies say the United States used to be, but is

no longer, a good model of democracy.12

During a time when authoritarian governments

are becoming alarmingly powerful and prevalent, it is

critical that the United States stand as an exemplar of

a well-functioning democracy. The degradation of

faith in election integrity directly impacts this ability

because the United States cannot promote the value of

democracy abroad without public confidence that its

own elections are free and fairly administered. And

without such ability, the march of authoritarianism

will continue with predictable harmful consequences

for the security of the United States and other

democracies.

The public’s lack of faith in elections would also

create opportunities for foreign actors to further

inflame domestic tensions and create significant longterm threats to our security. As recent events have

shown, extreme political polarization is a predicable

consequence of undermined elections.

Partisan

polarization makes us more vulnerable to

disinformation campaigns designed to fracture the

country and make it more difficult to respond to, and

defend against, foreign adversaries.

Distrust in elections has also increasingly

subjected election officials to harassment and

intimidation. The Brennan Center for Justice recently

12 Richard Wike, et al, What People Around the World Like –

and Dislike – About American Society and Politics, Pew Research

Center (Nov. 1, 2021), https://www.pewresearch.org/global/2021/

11/01/what-people-around-the-world-like-and-dislike-aboutamerican-society-and-politics/.

reported that one in three election officials felt unsafe

because of their job and nearly one in five said their

lives were threatened due to their work on elections.13

Moreover, nearly one in three local election officials

know at least one election worker who has left the job,

partly because of safety concerns, increased threats, or

intimidation.14 The Bipartisan Policy Center reports

that election workers have recently experienced a

“barrage of threats” “in what had traditionally been a

very low threat environment.”15 Many state election

officials facing such increased hostility are considering

quitting their jobs, and the field is already losing

election officials at an alarming rate. Emerging

Threats to Election Administration: Hearing before S.

Comm. on Rules and Admin, 117th Cong. (Oct. 26,

2021) (Testimony of Matthew Masterson).

The loss of experienced election officials leaves our

electoral systems vulnerable at a critical time for

American democracy. In the past few elections, bad

faith foreign actors have attempted to interfere with

our electoral systems. 16 Those efforts have largely

13 Brennan Center for Justice, Local Elections Official Survey

(Apr. 2021), https://www.brennancenter.org/our-work/researchreports/local-election-officials-survey.

14 Brennan Center for Justice, Local Elections Official Survey

(Mar. 2022), https://www.brennancenter.org/our-work/researchreports/local-election-officials-survey-march-2022.

Bipartisan Policy Center, Deterring Threats to Election

Workers (July 2022), https://bipartisanpolicy.org/report/deterring-threats-to-election-workers/.

16 See, e.g., Howard et al., Defending Elections: Federal Funding Needs for State Election Security, Brennan Center for Justice

(July 18, 2019), https://www.brennancenter.org/our-work/research-reports/defending-elections-federal-funding-needs-stateelection-security (discussing attempts to interfere with the 2016

been unsuccessful due to the diligence and expertise of

election workers. The loss of experienced election

workers would leave our election systems susceptible

to foreign interference and divert attention from

ensuring the security of election platforms.17

At this important juncture, nothing is more

important to the promotion of democracy globally than

regaining the public’s trust in U.S. elections. Adoption

of the independent state legislature theory would

serve only to destabilize our election system and

further erode the nation’s trust in electoral outcomes.

The predictable consequences of such a decision is the

politicization of the military, the weakening of

general election); Kevin Johnson, Russian Hackers Target U.S.

Computer Systems; Feds Say Elections Data Not Compromised,

USA

Today

(Oct.

22,

2020),

https://www.usatoday.com/story/news/politics/elections/

2020/10/22/election-2020-new-wave-russian-hacking-efforts-detected-officials/3735228001/ (discussing attempts to interfere

with the 2020 general election); Nicole Perlroth and David E.

Sanger, Ransomware Attacks Take On New Urgency Ahead of

Vote, New York Times, (Nov. 16, 2020), https://www.nytimes.com

/2020/09/27/technology/2020-election-security-threats.html;

Scott Ikeda, Iranian Hackers Indicted over 2020 US Election Interference, CPO Magazine (Nov. 23, 2021), https://www.

cpomagazine.com/cyber-security/iranian-hackers-indicted-over2020-us-election-interference-used-confidential-voter-information-to-send-targeted-misinformation-and-threats/.

17 See Letter From Former High-Ranking National Security

Officials To Congress: Election Subversion Poses National Security

Threat,

Medium

(Nov.

2021),

https://medium.com/@FormerU.S.NatSecOfficials/letter-fromformer-high-ranking-national-security-officials-to-congress-election-subversion-poses-69a269962ac.

American democracy, and the enhancement of threats

to the nation’s security.

II.

The

Independent

State

Legislature

Theory Will Disenfranchise Active Duty

Military Service Members and Their

Families.

Beyond the grave national security threats that are

posed by the independent state legislature theory, it

also creates a unique threat to the votes of active duty

military service members. Centralized power over

congressional elections in the hands of state

legislatures poses a concrete threat to the mail-in vote

of active duty military service members. At least 405

restrictive voting bills have been proposed in 39 state

legislatures during 2022. 18 Many of those bills are

designed to make mail-in voting more difficult,

sometimes based on the specious argument that mailin voting is less reliable. These restrictions will have

a significant, negative impact on military service

members and their families who overwhelmingly rely

on mail-in voting to participate in elections.

Americans today trace their ability to vote by mail

to soldiers voting far from home during the Civil War.

For the estimated three-quarters of the 1.4 million

military service members stationed away from their

legal voting residence, mail and absentee voting

18 Brennan Center for Justice, State Voting Laws, Overview

(2022),

https://www.brennancenter.org/issues/ensure-everyamerican-can-vote/voting-reform/state-voting-laws.

remain an area of critical concern.19 In every election,

active duty troops and their families cast their ballots

from wherever they are stationed, all across the globe.

Nearly half of military members voted in 2020, and

75% of military members are eligible to vote

absentee.20 For military members, the most common

method of voting is by mailing in their ballots.21 In

2020, 84% of military voters who returned an absentee

ballot did so by mail. 22 The high rate of ballots

returned by mail can be explained by the fact that

many states do not accept ballots electronically, and

mail return is the only ballot option for military

absentee voters from these states.23 Indeed, in 40% of

states, mail-in voting is the only allowed transmission

method of absentee ballots.24

The independent state legislature theory advanced

by petitioners risks imposing greater restrictions on

mail-in voting to the detriment of military members

who rely on it. Mail-in voting already faces significant

hurdles. For a mail-in ballot to be counted, military

members must comply with deadlines by which their

19 Federal Voting Assistance Program, State of the Military

Voter, https://www.fvap.gov/info/reports-surveys/StateoftheMilitaryVoter.

20 Ibid.

21 Ibid.

22 Federal Voting Assistance Program, Post-Election Voting

Survey: Active Duty Military Technical Report 2020, 23,

https://www.fvap.gov/uploads/FVAP/Reports/FVAP_ADMTechnical-Report-2020_FINAL_20210831.pdf.

23 Ibid.

24 Federal Voting Assistance Program, State of the Military

Voter, supra note 19.

ballots must be postmarked and received.25 Because

active duty military members are becoming more

aware of the need to return their mail-in ballots on

time, an increasing number of service members opt to

take advantage of states’ early voting periods to return

their ballots.26

Nonetheless, for military members voting by mail,

missing the deadline was the most common reason

why states rejected their 2020 general election mail-in

ballots.27 During the 2020 election, many active duty

service members were located in areas where postal

service was delayed or suspended because of the

COVID-19 pandemic.28 Therefore, setting aside post2020 proposed restrictions on mail-in voting, the 2020

election cycle demonstrated how structurally difficult

25 Generally, military mail-in ballots must be postmarked in

advance of Election Day. As to the deadline by which the ballot

must be received, in approximately one-third of states, a military

member’s 2020 general election ballot had to have been received

by Election Day. In the remaining two-thirds of states, the deadline ranged from two to 20 days after Election Day. See U.S.

Election Assistance Commission to the 117th Congress, Election

Administration and Voting Survey 2020 Comprehensive Report,

74 (Aug. 2021), https://www.eac.gov/sites/default/files/document_library/files/

2020_EAVS_Report_Final_508c.pdf.

26 Active Duty Military Technical Report 2020, supra note 22,

at 20.

27 Of the mail-in ballots that were rejected in the 2020 general

election, 44.7% were rejected for missing the deadline, and another 23.9% were rejected because of verification and signature

issues. Election Administration and Voting Survey 2020 Comprehensive Report, supra note 25, at 186.

28 Federal Voting Assistance Program, 2020 Post-Election Re-

port to Congress, https://www.fvap.gov/info/reports-surveys/

2020-report-to-congress.

it is for military votes to be properly counted given

military members’ service in remote locations.

The difficulties faced by mail-in voting would only

increase if the power over elections were centralized

in the hands of the state legislatures without any

judicial oversight. Although federal law provides

some protection for military mail-in voting, such as

requiring absentee military voters to automatically

receive their ballots 45 days before Election Day,

federal law does not entirely insulate military voters

from the requirements of state law. Military voters

who return their ballots by mail must still comply with

state deadlines for postmarking and receiving ballots,

as well as state signature and witnessing

requirements.

State legislatures are attempting to narrow the

window during which absentee ballots must be

received to be counted.

Such efforts include

shortening the early voting period, moving up the

deadline by which ballots must be postmarked,

moving up the deadline by which ballots must be

received, and eliminating discretion to count ballots

received later than three days after Election Day.

Similarly, there have been attempts by state

legislatures to make it harder to satisfy witnessing

and signature requirements by requiring mail-in

ballots to be notarized.

The independent state

legislature theory advanced by petitioners would place

such voting restrictions beyond challenge by the

persons impacted by them. Without the important

limitations imposed by states’ constitutions and

judiciary, these restrictions and requirements will

have devastating effects on military voters who

already struggle with ballot rejection due to missed

deadlines and verification issues.29

Where the legislature, executive, and judiciary

play their traditional roles in a three-branch system of

government, military service members stand a much

better chance of being able to exercise their

constitutional right to vote. For example, during the

COVID-19 pandemic, the Alaska judiciary suspended

the requirement that voters who submitted a mail-in

absentee ballot have a witness sign their ballot return

envelope. See State v. Arctic Village Council, 495 P.3d

313, 325–326 (Alaska 2021). Such continued interplay

between the different branches of government is

necessary if the mail-in vote of active duty military

service members is to remain protected.

“The uniform of our country must not be the badge

of disfranchisement for the man or woman who wears

it.” Carrington v. Rash, 380 U.S. 89, 97 (1965). The

voting rights of active duty military voters and their

families are particularly deserving of protection.

These service members volunteer to serve far from

home and to endure the risks of being put in harm’s

way. The nature of their service requires them to vote

by mail, and our nation owes them a debt to ensure

their votes are counted. The independent state legislature theory would create new barriers to military

service members’ participation in the democracy they

29 Election Administration and Voting Survey 2020 Compre-

hensive Report, supra note 25, at 186.

seek to defend. And for this reason, it should be rejected.

CONCLUSION

The independent state legislature theory will harm

election integrity and weaken public faith in elections.

Its adoption poses threats to national security and will

also serve to disenfranchise military voters. For these

reasons, the Court should reject the independent state

legislature theory and affirm the decision below.

Respectfully submitted,