Moore v. Harper – State Legislatures Control of Elections

We at Indivisible SF, along with democracy defenders nationwide, have been concerned with Republicans’ moves to choose which voters are allowed to elect them, because that has been an effective tool to enshrine the dominance of a political minority over legislation the majority of Americans support. In the Senate, the majority of Americans (51%) now live in the nine largest states—and yet they get a mere 18% of the seats. In the House, Republican legislatures have counted on partisan redistricting to bolster their power.

Today, Wednesday, December 7, 2022, the Supreme Court (SCOTUS) will hear Moore v. Harper, which deals with congressional redistricting in North Carolina. This gives our highly partisan SCOTUS the chance to review the latest effort by MAGA Republicans to seize power, based on what they call Independent State Legislature theory (ISL). This theory, long considered fringe and unworkable by state and federal courts, argues that state constitutions and state legislatures alone have such ultimate power to set federal election rules, unchecked by their courts and governors, that they can throw out voters’ choices and substitute their own chosen outcomes.

Moore v. Harper started out as a standard redistricting lawsuit about a highly partisan map drawn by North Carolina’s state legislature. Litigation ensued over its extreme partisan configuration and it was ultimately struck down by the North Carolina Supreme Court. The trial court adopted an interim map for the 2022 election cycle, drawn up by special masters (court-appointed experts). Republican legislators (the Moore parties) fought that by filing an emergency application to SCOTUS’ shadow docket, in which they invoked the ISL theory. They argued that the U.S. Constitution only allows state legislatures to draw new congressional districts and the state courts shouldn’t be allowed to throw gerrymandered district maps out. SCOTUS denied their application in an unsigned order with no explanation, thereby leaving the court’s interim map in place for the midterms.

Republican legislators referred to SCOTUS’ previous ruling in Rucho v. Common Cause saying that federal courts couldn’t hear partisan gerrymandering cases. And over the summer, SCOTUS granted the Moore parties’ request to decide whether “a State’s judicial branch may nullify the regulations governing [federal elections]…and replace them with regulations of the state courts’ own devising.” At least four Justices—we don’t know which, though we can probably guess three of them—agreed that the dangerous, radical ISL theory poses an important, unresolved constitutional issue that requires the attention of the Court.

A favorite hypocritical argument for many years among conservatives has been the notion of “judicial activism”—that when conservatives (or today’s fascists) are reined in by courts defending reason and democracy, it must be the actions of an “activist court” that is “legislating from the bench.” The hypocrisy is on full display whenever the right wing Federalist Society turns around and tries to do exactly that: load court benches, like our Supreme Court, with ideological partisans who’ll rubber-stamp their efforts to secure permanent power.

We must recognize that claims of “judicial activism” have always been full of hot air, and that Republicans are attempting to seize power through every branch of government, whether it’s pushing their Rogue State Legislature Theory or potentially getting a captured SCOTUS to sign off on such a legislature’s latest attempt to deny the will of the people and manufacture the consent of the governed.