“Buckle up,” implores one prominent legal scholar. “An extreme decision here could fundamentally alter the balance of power in setting election rules in the states and provide a path for great threats to elections.”
As SCOTUS-watchers scrambled to stay abreast of a rush of rulings affecting climate, immigration, Indigenous rights, and other policy areas, the nation’s highest court on Thursday said it would hear oral arguments this October in a case involving a controversial legal theory that one advocacy group says is “threatening the future of voting rights.”
The case, Moore v. Harper, involves North Carolina’s congressional map, which was drawn by the Republican-controlled state Legislature and which the state Supreme Court struck down as racially discriminatory.
In March, the U.S. Supreme Court rejected requests by Republican officials in North Carolina and Pennsylvania to restore GOP-rigged maps in a 6-3 ruling in favor of replacement maps. The North Carolina replacement map was drawn by a nonpartisan panel of experts and gives Democrats and Republicans six likely “safe” seats while two will be more competitive.
“Today’s news from the U.S. Supreme Court makes one thing clear: This fall, the future of multiracial democracy is at stake, Allison Riggs, co-executive director and chief counsel for voting rights at the Southern Coalition for Social Justice, said in a statement.
🚨BREAKING: Supreme Court grants cert to review North Carolina redistricting case. This will be a CRITICAL case for democracy next term as the Court will consider the GOP’s radical “Independent State Legislature” theory.https://t.co/xJgagh0pVW pic.twitter.com/eqCvacD8Np
— Marc E. Elias (@marceelias) June 30, 2022
At issue is the “independent state legislature theory” (ISLT), which the Brennan Center for Justice describes as a “baseless” concept “making the rounds in conservative legal circles” that posits congressional elections can only be regulated by a state’s lawmakers, not its judiciary—or even its constitution.
Prominent purveyors of former President Donald Trump’s “Big Lie” that the 2020 presidential election was “stolen”—most notably, Ginni Thomas, a right-wing activist and wife of Justice Clarence Thomas—have invoked the dubious theory when pushing state lawmakers to help overturn President Joe Biden’s Electoral College victory.
“In Moore, North Carolina lawmakers argue they essentially get a ‘free pass’ to violate state constitutional protections against partisan gerrymandering when drawing districts which undeniably hurt voters,” said Riggs. “We will vigorously fight these claims and instead advocate on behalf of North Carolinians to prove what the ‘independent state legislature theory’ has been all along—a fringe, desperate, and anti-democratic attack by a gerrymandered legislature.”
Looks like the Supreme Court is trying to finish what Trump started pic.twitter.com/LjOoWvk4Cq
— Ken Klippenstein (@kenklippenstein) June 30, 2022
Joshua Douglas, an election law professor at University of Kentucky, called Moore an “extremely dangerous case in that it could take away state constitutional limits on state legislatures when they enact restrictive voting rules.”
Bob Phillips, executive director of Common Cause North Carolina, a plaintiff in the Moore, said in a statement that “in a radical power grab, self-serving politicians want to defy our state’s highest court and impose illegal voting districts upon the people of North Carolina.”
“We must stop this dangerous attack on our freedom to vote,” he added.
Today’s news that the Supreme Court is taking up the Moore v. Harper case ahead of 2024 should scare the hell out of all of us. This Court could gut our Presidential elections the same way they just gutted Roe. Here’s a 🧵 on why it’s so dangerous and what we can do about it. 1/
— Mallory McMorrow (@MalloryMcMorrow) June 30, 2022
The U.S. Supreme Court’s decision to hear oral arguments in Moore comes one day after the justices voted 6-3 to temporarily block a federal judge’s ruling that Louisiana’s new congressional district map was racially discriminatory.
“After overturning abortion rights, striking down gun safety laws, and hamstringing the federal government’s efforts to protect our air and water, the Supreme Court teased what nightmare it has in store for us next,” Brett Edkins, managing director for policy and political affairs at the pro-democracy group Stand Up America, said in a statement.
“The far-right supermajority of the Supreme Court announced that it will take up a case that could upend state supreme courts’ ability to rein in out-of-control, partisan state legislatures,” he continued. “Among other things, the case could pour gasoline on partisan gerrymandering, giving politicians the last word on drawing electoral maps, obliterate state courts’ authority to uphold voter protections embodied in state constitutions, and potentially let state legislators reject presidential election results that they don’t like.”
“This endangers the very fabric of our democracy,” Edkins added. “We must pass the Judiciary Act to restore balance to this out-of-control Supreme Court and ensure they uphold long-standing precedents—not their own radical political agenda.”
Co-sponsored by U.S. Reps. Hank Johnson (D-Ga.), Jerrold Nadler (D-N.Y.), and Mondaire Jones (D-N.Y.), the Judiciary Act would increase the size of the U.S. Supreme Court from nine to 13 justices.
While noting that there “strong originalist arguments that might persuade some of the justices not to adopt such a radical reading” of state legislative power, Richard L. Hasen, a professor of law and political science at the University of California, Irvine, said “it’s hard to overstate the danger” of Moore.
ISLT, he wrote for Slate, “if taken to its extreme, could help foment election subversion. How so? Suppose a state court or agency interprets state rules to allow for the counting of certain ballots, and doing so favors one candidate. If the leaders of the legislature are from the other party, and they say that the interpretation does not follow the views of the legislature, it’s impermissible and the results need to flip.”
If the Supreme Court adopts the so-called “independent state legislature theory,” it will upend our elections and be the death of our democracy. Be warned. https://t.co/aHByTEjpZP
— Robert Reich (@RBReich) June 30, 2022
“This is essentially the argument that Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas accepted in their concurrence in the 2000 Bush v. Gore case, ending the 2000 presidential election and handing it to Bush,” notes Hasen.
“Buckle up,” he added. “An extreme decision here could fundamentally alter the balance of power in setting election rules in the states and provide a path for great threats to elections.”