Progressive campaigners in North Carolina warned Monday that a once-fringe conservative legal theory set to be taken up by the U.S. Supreme Court in the coming months poses a serious threat to representative democracy.
The nation's highest court is expected to hear Moore v. Harper, a case involving North Carolina's racially rigged congressional map, sometime in December or early next year—meaning the outcome won't affect the 2022 midterm elections.
After North Carolina's GOP-controlled Legislature prejudicially redrew the state's congressional map to lock in 10 of its 14 districts for Republicans, the state Supreme Court struck down the map, which it described as an "egregious and intentional partisan gerrymander... designed to enhance Republican performance."
Republican state lawmakers appealed, citing independent state legislature theory (ISLT), which the pro-democracy group Common Cause calls a "dangerous legal argument" increasingly popular in right-wing circles positing that federal elections can only be regulated by a state's lawmakers, not its judiciary—or even its constitution.
The elections clause and presidential electors clause of the U.S. Constitution explicitly empower state legislatures with regulating federal elections and appointing electors, respectively.
However, according to the Brennan Center for Justice:
The dispute hinges on how to understand the word "legislature." The long-running understanding is that it refers to each state's general lawmaking processes, including all the normal procedures and limitations. So if a state constitution subjects legislation to being blocked by a governor's veto or citizen referendum, election laws can be blocked via the same means. And state courts must ensure that laws for federal elections, like all laws, comply with their state constitutions.
Proponents of the independent state legislature theory reject this traditional reading, insisting that these clauses give state legislatures exclusive and near-absolute power to regulate federal elections. The result? When it comes to federal elections, legislators would be free to violate the state constitution and state courts couldn't stop them.
Purveyors of former President Donald Trump's "Big Lie" that the 2020 presidential election was stolen—including Ginni Thomas, a right-wing activist and wife of Justice Clarence Thomas—invoked ISLT during their efforts to pressure state lawmakers to help overturn President Joe Biden's Electoral College victory.
Experts including Michael Luttig, a former federal judge and distinguished conservative jurist, have warned than ISLT is a central pillar of the "Republican blueprint to steal the 2024 election."
Speaking of the upcoming U.S. Supreme Court hearing of Moore v. Harper during a Monday webinar co-hosted by the Southern Coalition for Social Justice, Kathay Feng, national redistricting director at Common Cause, said that "the date has yet to be set, but what we do know is the question at issue: Whether state legislatures should be given absolute and supreme power to create voting laws and redistricting maps for congressional elections."
Feng blasted what she called the GOP's "down and dirty" map rigging as "illegal and unconstitutional partisan gerrymanders with devastating consequences for voters, particularly Black voters, and their ability to elect candidates of their choice."
"The danger is not just that partisan political leaders will be able to draw lines without any kind of checks, but also that we the people will no longer have a representative government," she asserted. "Our government will be of, by, and for the politicians, not regular people."
Common Cause North Carolina executive director Bob Phillips called his state "number one in gerrymandered maps and number one in redistricting lawsuits."
"I don't know if there's any other state in America that holds this distinction, but every single election from 2012 up to 2020 was run and held… by maps that were eventually ruled unconstitutional," he said during the webinar. "So we do have this sordid past."
"We have had some success in the state courts in getting relief for the people of North Carolina, which we feel is vitally important," Phillips added. "And if that was taken away by the… U.S. Supreme Court making the wrong decision, we can just imagine what it would mean in North Carolina and across the country, with legislatures being able to rig the congressional lines freely and suppress the vote whether it's purging voters, making barriers to voter access, and just an assortment of things."
"The state courts must not be taken out of the equation," he insisted.
Tyler Daye, the policy and civic engagement manager at Common Cause North Carolina, said during the virtual meeting that "my first experience voting was in gerrymandered congressional districts."
"I used to live in the old 12th District, which stretched from Charlotte to Greensboro," he explained. "That district packed Black voters to dilute our voting power. It looked more like a river than a congressional district."
Daye was referring to the practice of "packing" voters of color into the same district in order to prevent them from having greater political power in surrounding ones. The related practice of "cracking" is the splitting of communities of color to dilute their power in a given district.
"[My] district has been called the most gerrymandered district in the country," Daye added. "Learning about how my voting power was being diluted made me want to get involved in the fight to end gerrymandering."
"Thankfully, the North Carolina state Supreme Court acted as a check on the state Legislature in a landmark ruling for our state," he said. "Ultimately, the North Carolina Supreme Court appointed special masters to draw the congressional map we currently have. These maps are not perfect, but they are a significant improvement over the extreme gerrymanders in the original congressional map."
"If the Legislature were to be successful in Moore v. Harper, it could threaten the state court's ability to provide this crucial check on the legislative branch," Daye warned.
Allison Riggs, legal counsel in the case and co-executive director of the Southern Coalition for Social Justice, told attendees that "we are optimistic about the case we're bringing to court."
"In 2019, five of the U.S. Supreme Court justices in a majority opinion written by Chief Justice John Roberts said that litigants and folks fighting for fair maps were not condemned to scream into a void and could go to state courts to seek relief under state constitutions," Riggs noted, referring to a case in which she argued against a previous North Carolina congressional map that had been struck down by a district court due to partisan gerrymandering.
"If the rogue theory being pushed here—the independent state legislative theory—were applicable the way it's being argued," she continued, "then the five justices who wrote that opinion would have no reason to have said it… It would be passing, illogical, and strange for them to have said go to state courts and state constitutions if the U.S. Constitution prohibited that."
"Likewise, there have been a number of cases over the past 200 years that strongly stand for the position that state courts and state processes matter in reviewing redistricting plans and reviewing election laws," Riggs added. "So what the North Carolina legislative leaders are proposing in front of the U.S. Supreme Court now is radical and is a dramatic departure from what we've seen for hundreds of years."