The Greatest Danger To American Democracy Came From New Supreme Court Lawsuit, Moore V. Harper

US democracy is in jeopardy because of Moore v. Harper, and the fate of that democracy may rest on the shoulders of Amy Coney Barrett.

Anyone who cares about democracy should be alarmed by the Supreme Court’s declaration on Thursday that it will consider Moore v. Harper, a case that might give gerrymandered state legislatures enormous power.

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These allegations are probably America’s gravest danger to democracy in years since the assault on January 6. It aims to restore Republican-favored gerrymandered congressional districts that were overturned by the state’s top court because they “subordinated customary neutral redistricting principles in favor of excessive party advantage”.

To support their claims, plaintiffs use legal grounds that would substantially affect the conduct of both the U.S. Congress and the U.S. presidential election. It concerns the “independent state legislative concept,” a notion the Supreme Court has rejected numerous times over the course of almost a century, but which gained traction towards the conclusion of the Trump administration when Republicans established a supermajority on the court.

As a result, all state constitutional restrictions on the skewing of federal elections by state legislators would be abolished. A gerrymandering statute that violates the state constitution or a law that randomly disqualifies voters would no longer be able to be overturned by state courts. It would also take away the ability of state governors to veto new state election laws.

In a 2020 concurring opinion, Justice Gorsuch referred to this strategy in a case involving the deadline for mail-in votes in Wisconsin “the Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”

Justice Gorsuch is one of four justices who have accepted some variation of the autonomous state legislative concept, along with Clarence Thomas, Samuel Alito, and Brett Kavanaugh. It has been indicated by at least four other court members that they will not reverse the Court’s many rulings rejecting this theory. That leaves Justice Amy Coney Barrett, a Trump appointee who usually sides with Republicans in election issues, to decide the destiny of American democracy.

According to this concept, the Supreme Court has yet to decide whether it would impose the most severe form of this doctrine, which would require the state supreme court to never overturn state election laws or for a state governor to never override an election bill, or a less extreme one.

The Moore case was put on the “shadow docket” by the Supreme Court in March. Alito authored a dissenting opinion even though the majority of the Court decided to temporarily send the case away, with Kavanaugh noting that he voted to do so because the case came to the Court at the wrong moment.

According to his perspective, he favors giving himself and his colleagues the latitude to overturn state court rulings that they disagree with.

As a result of Alito’s approach, pro-democracy state constitutional provisions may not cease to operate completely, but only if Alito and four of his fellow Republican colleagues want to suspend them.

In Moore, the stakes are obviously quite high. State attempts to counteract political gerrymandering could be rendered ineffective by the Court’s ruling in Moore.

Moreover, in areas where Republicans have the majority in the state legislature and Democrats control either the governor’s office or the state supreme court, a Republican president like Roy Moore could give the party total control over the way federal elections are handled.

The Independent State Legislature Doctrine, Briefly Explained

A basic reading of the Constitution provides the basis for the autonomous state legislature theory “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” According to a second law, the “Legislature” of the state is in charge of organizing presidential elections.

The Greatest Danger To American Democracy Came From New Supreme Court Lawsuit, Moore V. Harper
The Greatest Danger To American Democracy Came From New Supreme Court Lawsuit, Moore V. Harper

One interpretation of these clauses is that only the body of representatives often referred to as a state’s “legislative branch” may adopt election laws, which Thomas, Alito, Gorsuch, and Kavanaugh have all proposed. It’s possible that the executive and judicial branches (including the state supreme court) might be completely excluded from this process.

The Supreme Court, on the other hand, has often ruled against this idea. Davis v. Hildebrant (1916), which affirmed an Ohio constitutional clause allowing the people of the state to reject state election regulations by a popular vote, was the first case to raise the subject.

For Davis, the term “legislature” does not solely relate to the elected members who make up the state’s legislative branch, as it is used in the applicable constitutional provisions. Instead, the term “legislative authority” refers to any person or entity that has some degree of ability to create laws inside a state.

Davis explained that, under Ohio’s constitution, “the referendum was treated as part of the legislative power,” and thus “should be held and treated to be the state legislative power for the purpose of creating congressional districts by law.”

According to legal academics Vikram David Amar and Akhil Reed Amar, this is the only way to understand important US constitutional clauses “state people and state constitutions are masters of state legislatures,” and not the other way around.

According to this definition, therefore, each state is able to specify in its constitution which body or bodies have “legislative authority,” i.e the ability to create laws. All of such authority may be vested in an elected legislature, but it might also be devolved to a redistricting committee or to the people themselves via ballot initiatives and referendums. A state constitution can do both.

The majority of state governments really operate in this manner. Similar to the federal constitution, most state constitutions provide executive branch veto power over election legislation. Additionally, they usually grant state courts the authority to decide disputes over the interpretation of state constitutions and existing election laws.

As Amars writes, “since the Revolution, every state legislature has been defined and circumscribed, both procedurally (e.g., What counts as a quorum? Is the governor involved in legislation?) and substantively (e.g., What rights must the legislature respect?) by its state constitution.”

Since Davis was handed down, the Court’s ruling has been upheld several times. As recently as 2015, the Court of Appeals for the Ninth Circuit affirmed Arizona’s choice to employ a bipartisan panel to create congressional boundaries.

The Court explained this in that instance “our precedent teaches that redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto.”

The Court’s Decision To Hear The Moore Case Is Very Odd

This decision to hear a case that could potentially overturn or significantly alter precedents like Davis and Arizona State Legislature is not surprising, as four justices have already called for such cases to be overruled or significantly altered. After all, four votes are required to place a case on the Court’s docket for full briefing and oral argument.

Nonetheless, the Court’s decision to consider an independent state legislative doctrine issue in Moore is unusual. So, even if you accept Gorsuch’s view that states’ legislatures and not their courts are responsible for enforcing their laws and regulations, this is still the case “primary responsibility for setting election rules,” The North Carolina legislature made it clear that gerrymandering cases would be heard by the state’s courts.

North Carolina’s courts may still rule on gerrymandering lawsuits, even if the independent state legislative theory is legitimate since the state legislature ordered them to do so.

North Carolina law provides that lawsuits challenging “any act of the General Assembly that apportions or redistricts State legislative or congressional districts” may be filed “in the Superior Court of Wake County and shall be heard and determined by a three‑judge panel.” In such cases, an appeal to the state supreme court is an option.

If a court finds an unconstitutional legislative map in North Carolina, it will do so in accordance with state law, which was drafted by the state legislature.

To comply with a law, state courts are mandated to “find with specificity all facts supporting” its conclusion that a map is illegal. Another provides that, after a state court strikes down a redistricting plan, it may not “impose its own substitute plan unless the court first gives the General Assembly a period of time to remedy any defects identified by the court.”

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In other words, the Supreme Court seems to have picked up a case where there is no valid legal controversy in its hurry to hear an independent state legislative doctrine issue. It is true that only state legislatures have the right to create a state’s election laws, yet the North Carolina legislature utilized this authority to give state courts the specific jurisdiction to invalidate gerrymandered maps.

The Court’s willingness to take this case, however, begs the question of whether it would contemplate overturning precedent-setting rulings such as Davis and the Arizona State Legislature.

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