Leonard Leo-Tied Group Pushing Radical Election Theory Got $66 Million Recently From 'Dark Money' Hub
The Honest Elections Project helped catapult an extreme legal theory on elections to the Supreme Court.
On December 7, the U.S. Supreme Court will start hearing arguments in Moore v. Harper, a case related to partisan gerrymandering that will address the so-called “independent state legislature theory.” The legal theory, known as ISLT, holds that the Election Clause of the Constitution gives all power over federal election processes to state legislatures. It is favored by many conservative groups and would give state legislatures unchecked power to run federal elections, barring reviews from governors, citizen referendums, or courts at the federal or state levels. The nonpartisan Brennan Center for Justice describes ISLT as “radical and meritless,” a view shared by a broad coalition of legal scholars that includes many prominent conservative jurists.
In the case, a group of North Carolina Republican lawmakers is asking the Supreme Court to endorse the ISLT as justification for reinstating congressional district maps drawn by the legislature that the state Supreme Court struck down as unconstitutional due to partisan gerrymandering. If the Supreme Court sides with the Republicans’ ISLT argument, its implications could go so far as overturning elections, according to the Brennan Center, handing state legislators near-absolute power to appoint their own slate of presidential electors, regardless of the popular vote results.
The ISLT is viewed by many as a fringe legal theory, one with a long history of being rejected by a majority of Supreme Court justices. In the views of legal experts, however, ISLT’s prospects changed over the past two years as a well-financed right-wing legal group called the Honest Elections Project (HEP) has dramatically stepped up its activities to promote the theory, eyeing an audience with the Supreme Court.
NPR voting correspondent Hansi Lo Wang has reported that the Honest Elections Project has repeatedly petitioned the Supreme Court since 2020 to hear a case on state legislatures’ ability to set rules governing federal elections. Similarly, voting rights correspondent Ari Berman flagged as influential the group’s brief in a challenge to mail-in ballots brought by the Republican Party of Pennsylvania in the months before the 2020 election, which is based on the ISLT. The Pennsylvania case resulted in a 4-4 deadlock shortly before Amy Coney Barrett was confirmed, but through opinions in that case and others, four conservative justices (Samuel Alito, Brett Kavanaugh, Neil Gorsuch, and Clarence Thomas) signaled their openness to ISLT. On June 30, with Barrett in place as a potentially pivotal fifth vote, the Court announced that it would hear Moore. The HEP filed an amicus brief in the Moore case endorsing ISLT.
The HEP is closely linked to conservative legal activist Leonard Leo, a lawyer who as an adviser to former President Donald Trump helped select the Supreme Court’s conservative supermajority. The HEP was created out of a reshuffling of opaque conservative nonprofits: the Leo-tied Judicial Education Project in December 2019 changed its name to The 85 Fund, which in May 2020 picked up the HEP name as a legal alias in a rebranding move. Leo also serves as co-chair of the powerful Federalist Society, a highly influential conservative legal group part of a network that similarly promoted ISLT’s claims. The 85 Fund and an allied group, the Concord Fund, were founded by Leo’s conservative allies and have paid two of Leo’s for-profit groups hefty consulting fees. Leo has been described as an adviser to the network.
The nominations of conservative Supreme Court Justices Gorsuch, Kavanaugh, and Coney Barrett were backed by tens of millions of dollars in ad spending by Leo-tied dark money groups.
As a nonprofit organization, HEP is not required to publicly disclose its donors, but tax records show that in recent years more than 70% of its funding came from a “dark money” group used by wealthy conservative donors to shield their identities.
In 2020 and 2021, HEP received more than $65.8 million from DonorsTrust, a major conduit group used by the Koch network of political donors, according to new profiles of conservative funding groups available on MonitoringInfluence from the watchdog group Accountable.US. In 2020, as it ramped up its ISLT efforts, HEP’s $48.7 million in donations from DonorsTrust that year made up about three-quarters of its revenue.
DonorsTrust, dubbed the “Dark Money ATM” of the conservative movement, is a donor-advised fund that funnels anonymous donations to hundreds of organizations, including many right-wing legal and policy groups known to be favored by the Koch network and other megadonors. Donor-advised funds like DonorsTrust provide donors with accounts and forward their funds to charities of their choice, offering the donors an extra layer of anonymity and numerous tax advantages. The funding that arrived to HEP via DonorsTrust in 2020 sharply increased the 85 Fund’s revenue, which jumped nearly fivefold from the year before.
America First Works, a 501(c)(4) advocacy group led by former Trump campaign officials, donated $4.8 million to DonorsTrust in 2020 that it earmarked for HEP. Another $2 million donation to the 85 Fund in 2020 came through the gigantic National Christian Charitable Foundation, according to tax filings, possibly given through the foundation’s donor-advised funds.
The 85 Fund, HEP, and Judicial Election Project conglomerate has received donations from several more well-known conservative funders in recent years, according to the Center for Media and Democracy, including the Ed Uihlein Family Foundation, Story Garschina Foundation, Bradley Impact Fund, Diana Davis Spencer Foundation, and the Thomas W. Smith Foundation. It has also received donations from donor-advised funds sponsors the National Philanthropic Trust and the Fidelity Investments Charitable Gift Fund.
The Dark Money Conservative Legal Network
Several more groups that have received millions of dollars in anonymous donations via DonorsTrust since 2016 filed amicus briefs in the Moore case supporting the ISLT argument, according to Accountable.US: the American Legislative Exchange Council (ALEC); the Public Interest Legal Foundation, a conservative legal group chaired by Trump’s former lawyer Cleta Mitchell; the Claremont Institute, where Trump-supporting lawyer John C. Eastman, who wrote memos seeking to overturn the 2020 election results, founded and directs the Center for Constitutional Jurisprudence; and the nonprofit America’s Future, Inc., which received a $1 million infusion last year from DonorsTrust.
These groups are part of a network for conservative election lawyers, many of whom touted Trump’s false claims of a stolen 2020 election and worked to pass laws that limit election access in battleground states. According to the Brennan Center, dozens of restrictive voting measures have passed in states since the start of last year.
The secretive organization ALEC, which brings together corporate lobbyists with state lawmakers to craft policies, submitted an amicus brief arguing for the petitioners in Moore “because a state constitutional provision cannot withdraw or limit the Federal Constitution’s express grant of authority to state legislatures.” This summer, ALEC invited legislators to a two-day Honest Elections Academy, according to ExposedByCMD, capped by a leadership dinner co-hosted with HEP. In a speech to a friendly conservative audience last year, ALEC’s CEO Lisa Nelson admitted that HEP operates as ALEC’s outsourced lead in writing and spreading elections-related policy, allowing her to largely dodge questions about ALEC’s elections work. From 2016 through 2021, ALEC has received almost $2.5 million from DonorsTrust and nearly $475,000 from supporting group Donors Capital Trust.
The Public Interest Legal Foundation’s brief filed in the Moore case states, “The Framers sought to protect ordered liberty by vesting state legislatures as the primary reservoir of power over elections.” The conservative legal group is known for bringing lawsuits against states and localities, pushing them to purge voters from their rolls. Based in Indianapolis, the group has received $850,000 from DonorsTrust and $400,000 from the 85 Fund since 2017. Its chair Cleta Mitchell is employed by a conservative nonprofit that acts as a hub of conservative efforts to impose restrictions on voting based on baseless claims of widespread voter fraud. In 2020, Mitchell participated in phone calls with Trump pressuring Georgia election officials to overturn the state’s 2020 results. In addition, the group has received millions of dollars from prominent right-wing donors: the Milwaukee-based Bradley Foundation; its aligned donor-advised fund, the Bradley Impact Fund; and the Sarah Scaife Foundation, beneficiary of the late billionaire Richard Mellon Scaife, a megadonor to right-wing causes.
The Claremont Institute’s brief argues that the federal Constitution gives “plenary” power to the “Legislatures” of the states in conducting federal elections. An influential think tank, the group’s John C. Eastman debated with former Vice President Mike Pence’s lawyers ahead of the Jan. 6 Electoral College certification over legal scenarios for rejecting the state-approved slates of presidential electors. The group has received more than half a million dollars from DonorsTrust and Donors Capital Fund since 2016, as well as more than $2.2 million from the Sarah Scaife Foundation and half a million dollars from the Bradley Foundation.
The nonprofit America’s Future, based in St. Louis, also filed a Supreme Court brief supporting a narrow reading of “Legislature” after receiving $1 million from DonorsTrust in 2021. Three law firms, including the right-wing Trump ally William J. Olson of Virginia, joined as co-counsel in the group’s brief. In 2020, the group’s tax filing reported only $92,014 in revenue and listed as its president Ed Martin, a former Missouri Republican Party chairman and former candidate for state attorney general. In May 2021, Martin wrote on the website of the Phyllis Schlafly Eagles, a conservative interest group where he is still the president, that former Trump adviser General Michael Flynn was taking on the role of chair of America’s Future. Flynn’s sister Mary O’Neill is now listed on the group’s website as executive director, and the group is now based in Florida.
The Semantic Argument at the Core of ISLT
Around 70 amicus briefs have been filed in Moore v. Harper, including briefs opposing ISLT from conservative lawyers who decry the theory’s reasoning and warn of its dangerous implications. One was filed by conservative legal theorist and former federal judge J. Michael Luttig, who recently called ISLT “antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution.” Another came from Republican lawyer Benjamin Ginsberg, who worked on the infamous Bush v Gore case in 2000, and others arrived from GOP political appointees and legal scholars.
“We can not allow extremist groups hiding in the shadows to break down our constitutional rights and derail our democracy,” said Kayla Hancock, Director of Power and Influence with Accountable.US. Hancock warned that ISLT “would eliminate checks and balances in our federal elections and empower state legislatures to manipulate and undermine our elections.”
In their Moore brief, the Republican petitioners write, “the power to regulate federal elections lies with State legislatures alone, and the [U.S. Constitution’s Elections Clause] does not allow the state courts, or any other organ of state government, to second-guess the legislature’s determinations.” In its brief to the Supreme Court, the HEP offers backup, mounting a case for ISLT based on its reading of the “plain meaning” of “Legislature” in the Elections Clause.
This core ISLT argument has been rejected by the Supreme Court in cases going back to 1916. Most recently, a majority of justices decided against ISLT in 2015, when the Court allowed for an independent redistricting commission in Arizona, ruling that “legislature” in historical context meant “the power to make laws,” not a specific state legislative body. The petitioners’ narrow interpretation of “Legislature” is challenged on multiple fronts by Brennan Center experts, who write, among other arguments, that “it would be absurd for a state legislature to be allowed to violate the very state constitution that created it.”
Ahead of the 2020 election, HEP’s Executive Director Jason Snead built a project called the Heritage Election Fraud Database with Republican election lawyer Hans von Spakovsky of the Heritage Foundation, who has promoted voter restrictions such as strict voter I.D. laws in states based on groundless claims of mass voter fraud. The database’s methodology was criticized by election researchers as overly broad, but its findings still underscored the extreme rarity of intentional voter fraud in U.S. elections.
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