LOS ANGELES –  The American Bar Association (ABA) House of Delegates earlier this month adopted a resolution supporting efforts to restore state-separation-of-powers principles in anticipation of a possible, unprecedented ruling by the U.S. Supreme Court in a controversial case that could upend state constitutional structures with respect to regulation of federal elections nationwide.

“RESOLVED, That the American Bar Association urges all federal, state, local, territorial, and tribal legislative bodies, and governmental agencies to adopt laws and policies that ensure that state separation-of-powers principles, established in state constitutions, and the structures to support those principles, apply with full force to state regulation of the elections of members of Congress,” reads Resolution 605.

Resolution 605 was presented to the House of Delegates on February 6 at the ABA Mid-Year Meeting by MALDEF (Mexican American Legal Defense and Educational Fund) President and General Counsel Thomas A. Saenz, who is a member of the ABA Coalition on Racial and Ethnic Justice.

“Should the Supreme Court overturn longstanding practice and understanding of state authority with respect to federal regulations, this resolution puts the nation’s largest association of lawyers squarely in support of restoring state separation-of-powers principles and enabling state courts again to play their critical role,” Saenz said. “Such a Court decision would certainly surprise state constitution framers who followed the federal constitution to incorporate separation of powers and judicial review; I am proud to have participated in taking this step to respond to any unwarranted decision by the Supreme Court in the pending case out of North Carolina.”

The case, Moore v. Harper, is the North Carolina legislature’s appeal of a ruling by the state Supreme Court striking down the state’s congressional map as partisan gerrymandering. The case hinges on the Independent State Legislature Theory (ISLT), which asserts that the U.S. Constitution gives state legislatures the exclusive power to regulate federal elections without any review by state courts for compliance with state constitutional law.

The adoption of Resolution 605 by the oldest and largest organization of lawyers in the United States was in preparation of a possible ruling in which a majority of justices agree with the ISLT. The ABA issued its resolution as preemptive support of possible congressional action – should ISLT be adopted – that would maintain current processes of judicial review and adherence to state constitutions in matters related to federal elections, including redistricting.

In the event that justices issue an opinion in support of the ISLT, ABA Resolution 605 also conveys support for individual states enacting legislation that prohibit the application of the theory. It establishes an ABA position in support of restoring the application of state separation of powers in the context of regulation of federal elections.

In October, the ABA filed an amicus brief in Moore in support of the case’s respondents. In its brief, the ABA argued that adoption of the ISLT would grant unchecked power to state legislatures in violation of the U.S. Constitution and prevent state courts from enforcing state constitutions.

Read the resolution HERE.