October 27, 2022

On October 26, Willkie filed a pro bono amicus brief on behalf of Professors Lawrence Friedman and Robert F. Williams in Moore v. Harper, a case currently pending before the United States Supreme Court involving the so-called “Independent State Legislature” theory, which would interpret the Constitution to grant state legislatures exclusive power over redistricting for federal elections. The case is likely to have a major impact on redistricting litigation, particularly challenges to partisan gerrymanders.

The amicus brief draws on Professors Williams and Friedman’s scholarship in state constitutional history to show that the Framers had extensive experience designing and serving under state constitutions by the time they arrived at the 1787 Constitutional Convention in Philadelphia, which had led them to distrust raw legislative power and build checks and balances into state constitutions. Given that experience, and contrary to the “Independent State Legislature” theory, the brief argues, the Framers would not have intended the federal Constitution to grant state legislatures unchecked authority over redistricting, and would not have understood the Elections Clause’s use of the term “Legislature” to have that effect.

The case is set for argument in December.

The Willkie team was comprised of partner Michael Gottlieb and associates Aaron Nathan, JoAnna Suriani, David Avraham, and Jeremy Salinger.