Over recent months, the Supreme Court’s extremist conservative six-member super majority has handed down rulings in several landmark cases that overturned decades of precedents and settled law on abortion rights, restrictions on guns in New York state, weakened the EPA’s ability to regulate pollution and carbon emissions and further tore down the separation between church and state.
Now four justices have voted to hear the Moore v. Harper case where the court will decide if North Carolina’s Supreme Court has the power to strike down the legislature’s illegally drawn partisan gerrymandered congressional map that favors GOP candidates, for violating the state’s Constitution. The legislators have argued that a debunked interpretation of the U.S. Constitution — known as the “independent state legislature theory” — renders the state courts and state constitution powerless in matters relating to federal elections.
If the conservative court majority endorses the independent state legislature theory in the Moore case, voters across the country could no longer challenge partisan gerrymandering in their state supreme courts, which would eliminate all judicial checks and balances on a state legislature’s power, including a governor’s veto, citizen-led ballot measures and independent redistricting commissions.
Future presidential elections could also be impacted where state legislatures could disregard the will of the people and certify the losing candidate’s slate of electors, thus subverting the presidential Electoral College process. Between The Lines’ Scott Harris spoke with Dan Vicuña, national redistricting manager with Common Cause, who talks about the threat to democracy that looms over the Supreme Court’s future ruling in the Moore v. Harper case.
DAN VICUÑA: So Moore v Harper originates in a challenge to a partisan gerrymander of North Carolina’s congressional map. The North Carolina legislature, run by Republicans, drew up a congressional map. Fourteen seats in a state that’s pretty evenly split between Democrats and Republicans. Drew it in such a way the Republicans would win 11 of those seats and in doing so, skewing the partisan outcomes which also split a bunch of communities, making it very hard for them to achieve fair representation. In particular, the map really targets representation for black communities. Tries to split them up to sort of bleach as many districts as possible. Make it easier for Republicans to get elected.
We, along with other sets of plaintiffs, brought a challenge to this map in state court. We argued that the map represented an illegal partisan gerrymander that violated the North Carolina Constitution.
We also brought a similar case last cycle that succeeded. We make the argument that the Fair Elections Clause of the state’s constitution provides very strong protections, even beyond federal law. Also, under some provisions of the state constitution that are pretty similar to the federal Constitution: the equal- protection clause, First Amendment. Basically, saying that by diluting the vote of Democrats in the state, you’re violating voting rights in a way that’s illegal under the state constitution.
So we won at the state level. North Carolina legislators, of course, being very unhappy about being held accountable, not liking the new map that the state Supreme Court ordered some nonpartisan special masters to draw, challenged this case. Took this, what was a state law case, to the U.S. Supreme Court.
And the argument that they’re making in the U.S. Supreme Court is a pretty dangerous one. It’s that they are asking the court to adopt a radical power grab in a theory they’re calling the “independent state legislature doctrine.” And the argument they’re making is that the U.S. Constitution gives legislators completely free rein, basically superpowers to make whatever rules they want for federal elections and state courts can play no role in providing any oversight.
You know, it’s just a huge power grab with potentially dangerous consequences.
SCOTT HARRIS: Dan, beyond what we’ve talked about so far in terms of the consequences of the U.S. Supreme Court conferring legitimacy on the independent state legislature theory, what are some of the other consequences for democracy that you’re concerned about in terms of what I’ve heard described as the utter chaos that would ensue with state elections and state laws and governor’s ability to veto legislation passed by a state legislature?
DAN VICUÑA: Yeah, I mean, there are state courts that have played a key role in ensuring voting rights in emergency situations to interpret laws during the pandemic — to interpret laws in ways that were in support of greater expansion of voting rights.
You know, I obviously imagine scenarios where strict voter ID or the closing of polling places in certain communities or eliminating early voting if it is used disproportionately by certain communities that the majority party doesn’t like.
If legislatures engage in those acts in order to increase their electoral chances —— to be able to do so without any oversight in state law to have to rely solely on federal courts —— that may be unfriendly to the arguments of voting advocates. It’s bad enough that this case puts at risk protections for redistricting and fair maps. But it certainly expands beyond to other voting rights issues as well.
SCOTT HARRIS: Dan, how can the federal government respond if the Supreme Court confers legitimacy on the independent state legislature theory? From my understanding, the federal government does have authority over how federal elections are conducted in the states. What’s Congress doing to consider legislation that would pre-empt this possible outcome?
DAN VICUÑA: Well, there’s been, you know, a few different attempts. There’s been efforts to pass a new Voting Rights Act, to pass more expansive voting rights protections that include campaign finance reform that include independent redistricting commissions in every state that’s got more than one district. Those have passed the House, unfortunately, they hit a bit of a wall and the filibuster-protected Senate.
But certainly, the elections clause in which the North Carolina legislators are using in this case, Moore v Harper also includes a provision that very clearly gives Congress the authority to act. And, you know, this is a perilous moment for democracy broadly. And we believe this is the time for them to act to ensure that federal elections are protected from those who would manipulate our democracy for partisan purposes.
For more information about Moore v. Harper, visit Common Cause’s website about their North Carolina case here.
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