The Danger of Moore v Harper and Independent State Legislative Theory
On Wednesday, December 7th there was a hugely important oral argument before the Supreme Court in Moore v Harper, a case coming out of North Carolina involving gerrymandering, that could upend our democracy. How? By empowering state legislatures to do almost anything they damn please when it comes to rules about national elections including totally unfair gerrymandering and unfair election laws without regard for the will of the voters or the changing demographics of the electorate and without the oversight they get now from state courts and state constitutions.
How Did We Get Here? What is Moore v Harper About?
North Carolina is a state with an electorate that is close to 50/50 Republicans/Democrats. The state legislature is Republican led. The state supreme court leans Democratic. North Carolina has 14 congressional seats.
Last year, North Carolina’s Republican-dominated state legislature passed, on a party-line vote, an extreme partisan gerrymander to lock in a supermajority of the state’s 14 congressional seats. The gerrymander was so extreme that an evenly divided popular vote would have awarded 10 seats to the Republicans and only four to the Democrats. The map was a radical statistical outlier more favorable to Republicans than 99.9999% of all possible maps.
Voters contested the map in state court, contending that the map violated the state constitution’s “free elections clause,” among other provisions. In February 2022, the North Carolina Supreme Court agreed with the voters and struck down the map, describing it as an “egregious and intentional partisan gerrymander . . . designed to enhance Republican performance, and thereby give a greater voice to those voters than to any others.”
The unrepentant legislature proposed a second gerrymandered map, prompting a state court to order a special master to create a fair map for the 2022 congressional elections. Unwilling to accept this outcome, two Republican legislators asked the U.S. Supreme Court to step in and reinstate their gerrymandered map. (The Brennan Center)
When asked why the map they drew was 10 R to 4 D the answer was “because we could not find a way to make it 11 R to 3 D”. In other words, the North Carolina state legislature is determined to draw up unfair, partisan maps and they want the Supreme Court to back them up on that.
This North Carolina case gives the Supreme Court the opportunity to settle whether the Election Clause in the Constitution grants almost unchecked power to state legislatures to determine the rules surrounding federal elections. The theory that could give states this power is the Independent State Legislative Theory (ISLT.)
The ISLT argument has received overwhelming bipartisan opposition, and it also directly contradicts more than a century of precedent, including the recent decision in Rucho v. Common Cause in which the Supreme Court clearly said state supreme courts are in charge when it comes to interpreting state constitutional law governing national elections.
What is ISLT? A Deeper Dive
ISLT is a fringe theory that is based on a misreading of the Constitution’s Election clause. If it becomes the law of the land, it would be an open invitation for states to draw convoluted, tortured district lines that would, as North Carolina’s did, create as many Republican districts as possible and write laws that would have as their ultimate goal the attempt to keep Republicans in the White House literally forever with the help of 30 state legislatures across the nation currently in the hands of Republicans.
It is also true that blue state legislatures would have the same power granted to red state legislatures if ISLT were to become the law of the land. The difference is that the Republicans are the ones who are motivated to violate historical checks and balances using the ISLT as their claim of legitimacy. Republicans currently “own” 30 out of 50 state legislatures and are in a position to rig the Electoral College using ISLT as the justification for their power grab.
Why is This Happening Now?
Why would Republicans do this? Because they are the party losing market share as they move ever farther to the right and harden and solidify the shrinking MAGA base that eagerly (desperately) supports what remains of the GOP. They are hell bent on maintaining power against the tide of history. To keep power as they dwindle, they are resorting to cheating and altering the rules so they can still claim a win even when they lose elections (fail to get enough votes).
We have seen how the Big Lie fed into this strong desire to win at any cost, even if cheating was the way to declare victory. Blue states, states with Democrats leading the state legislatures, by way of contrast, want to keep our democracy intact and want to move the country towards greater equity and inclusion. Those states do not have the same incentive to cheat to win because they represent a growing electorate.
What Does ISLT Do That is So Awful?
The Independent State Legislative Theory helps the GOP maintain power in states where they control the majority by getting rid of checks and balances on state houses. This includes losing oversight on legislation that red state houses could pass that contravenes their own state constitutions. With the ISLT in place, state courts and governors who currently have the power to veto and/or overturn illiberal, partisan, unfair laws when it comes to national voting rights and rules, and partisan and racial gerrymandering, would be suddenly helpless to check wayward state legislatures that write and pass undemocratic, illiberal laws and gerrymanders. If ISLT is adopted, only federal courts would have the power to curb unfair rules or decisions made by state legislatures. State courts would be cut out of the picture, in other words even if the laws they are passing violate their own state constitutions.
If this fringe theory were to be adopted by the Supreme Court, GOP led state legislatures could and almost certainly would enshrine the John Eastman playbook that Trump tried to use in 2020 to stay in power. How would that go down? Simple. The state house would pass laws allowing the state legislature to declare that if they thought some sort of fraud had happened in the election (with or without evidence) that would justify the replacement of the slate of electors to go to the Electoral College from one chosen by the voters to one representing the will of the state legislature.
In short, the John Eastman playbook that was illegal in 2020 could become legal by 2024. The Supreme Court decision will be announced in the summer of 2023.
THE POLITICIZED SUPREME COURT
Why would the Supreme Court want to enshrine this fringe theory that removes national elections from the uniform exercise of laws upholding a representational democracy to a patchwork quilt of potentially illiberal rules? Why would the Court do such damage to our democracy?
The Court might deny it, but it has become a political entity. Americans know this and for that reason they have lost faith in the Court.
According to the University of Pennsylvania’s Annenberg Public Policy Center, 53 percent now disapprove of how the nation’s highest court handles its business. Specifically, the poll of 1,113 U.S. adults found only 46 percent have a great or fair amount of trust in the Supreme Court. That’s down from 68 percent in 2019.
There are at least three and probably more than three deeply committed religious right Christian nationalists on the current bench (Gorsuch, Alito, Barrett, Kavanaugh, Thomas) and whether they admit it publicly or not, they are maneuvering to keep Republicans in power along with Ginni Thomas, wife of Justice Clarence Thomas, who actively worked with John Eastman and GOP led state legislatures in battleground (purple) states to overturn the fair election of Joe Biden in 2020.
As the New York Times editorial board aptly put it: the ISLT is a power grab masquerading as a legal theory. https://www.nytimes.com/2022/12/09/opinion/supreme-court-moore-v-harper.html
What Are Republicans Afraid Of?
They fear the rising majority of black and brown people, along with a multicultural mix of young people who are not intolerant, not religious, not anti-LGBTQ, are pro abortion, pro gun control, and pro climate change legislation. This next generation is rising up and will inherit this country in the coming years. The result will be a natural “replacement” of our current culture and, if we can navigate it well, the opportunity for a truly integrated, multicultural nation that offers a way forward for everyone no matter what color their skin may be or what religion they like or where their forefathers came from.
That was the progressive vision Barack Obama seemed to herald. Obama’s presidency kicked off a backlash from the other side giving rise to Trump and Trumpism. But in a strange way Obama probably came too soon for our country. It’s a shame he could not run for president now and lead our country at this moment. We could use his steady hand at the tiller during our country’s transition.
This evolution will happen no matter what. It is already happening. Suburban America has quietly become a melting pot. See https://www.washingtonpost.com/business/2022/11/04/mixed-race-neighborhoods/College educated suburban women are the ultimate “swing” voters these days. They are making the suburbs and exurban areas around cities purple.
“Not only are minorities growing faster than Whites in most parts of the country, but the younger segment of the population — those who make up most movers — are exceptionally diverse,” Frey said. “The 2020 Census shows that for the first time, minorities comprise more than half of the under-age-18 population
The irony is that the fading white Christian nationalist group, including Evangelicals, who claim to have the moral high ground, are the ones denigrating and damaging the moral fiber of our country. They are trashing our democratic norms with Trump and Trumpism as their guiding light showing them the way to stay in power at any cost. The ISLT is part of that denigration of democracy and cultural norms.
We will have to see if the Supreme Court does rule in favor of ISLT or not. There is still a chance that they will do the right thing and reject this anti-democratic idea. During the oral argument three right wing justices expressed support for ISLT: Alito, Gorsuch and probably Thomas. The three liberal justices were adamantly opposed and very articulate about how damaging this would be to our country: Jackson, who was newly appointed, Kagan and Sotomayer. Then there were the three justices who seemed to want to find a way to have a more nuanced version of ISLT, whatever that is.
The problem is, as Eric Holder (who has been working for years to get fair maps in America) is saying every chance he can get, is that ANY adoption of this theory would be highly damaging to our democracy. It is a junk theory that would undo our checks and balances when it comes to national elections. Full stop. It looks like this Court may well have enough votes to come up with some compromise version of ISLT but even that will be awful for our democracy.
What Can We Do About This Extremist Court?
Part of the problem we face is that unlike Dobbs, this Supreme Court decision about an esoteric theory is hard for most Americans to grasp. Yet many Americans who rose up to vote in larger than expected numbers in the midterms did tell exit pollsters they were worried about our democracy as well as the loss of reproductive freedom. Democracy still is an issue animating voters.
If voters realize that Moore v Harper is an imminent danger to our democracy, they will care.
So…how could Americans push back?
By insisting that we expand the Supreme Court.
There is nothing written in stone about having 9 justices on our Supreme Court. That decision to have 9 justices was based on 9 judicial circuits. Today we have 13 judicial circuits. Therefore, it follows that we should have 13 Supreme Court justices.
Members of the presidential commission on the Supreme Court were candid about this reform: Court expansion would be the most effective means to dilute the influence of the current right-wing majority. The commission also noted that it could provide more diversity on our highest court, which is very small compared with those of other developed democracies. (Jennifer Rubin Washington Post Op-Ed)
If Biden could appoint 4 more justices during his term in office that would immediately cure the imbalance we have as a result of the campaign by the ultra conservatives (who should really be called radical extremists) to stock and entrench the Court with radical extremists deeply out of step with the will of a majority of Americans.
The Democrats now control the Senate with 51 votes. This is the time to act to get a Supreme Court that reflects the views of Americans. Republicans will scream bloody murder. Let them. This is what their overreach has caused. It is their fault that the Court has become a hotbed of extremism. It is up to the Democrats to respond with a fix.