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GOP’s latest constitutional theory puts fair elections at risk

North Carolina House Speaker Tim Moore

Moore v. Harper case could upend decades of established constitutional law and endanger democracy

The U.S. Supreme Court, as if rushing to settle old grievances, in recent weeks has thrashed about in a virtual frenzy of “originalism” – never mind the consequences for America’s civic well-being.

Our federal Constitution neglects to confer a woman’s explicit right to have an abortion? Then states must be free to impose abortion bans going so far as to require victims of rape and incest to bear the children of their predators – unless they can afford to have the procedure done in jurisdictions where such women (or girls) aren’t doubly victimized.

The Second Amendment guarantees a right (arguably a qualified right) to bear firearms? Well, then, states cannot require gun owners to show why they have a particular need to carry their weapons in public. As if letting the number of firearms circulating on the nation’s streets and in its neighborhoods serves a public purpose in an era of sickening gun violence, the July 4 horror outside of Chicago being just the latest example.

The law intended to fight air pollution doesn’t specifically authorize the federal government to tell power companies to limit their use of greenhouse gas-producing fossil fuels? Sorry – those companies can continue to slow-walk the transition to renewable energy sources while temperature-driven climate change degrades the lives of millions.

And then there was this humdinger of a decision by the justices, or enough of them to potentially throw our nation’s democratic system of checks and balances badly out of whack. Wouldn’t you know it: The decision, announced June 30 with no explanation, sprang from strategies cooked up right here on Raleigh’s Jones Street by our Republican-controlled General Assembly.

If there’s any good news, it’s that the high court hasn’t rendered a final ruling. Instead, it has agreed to consider complaints by state House Speaker Tim Moore, state Senate President Pro Tem Phil Berger, and key colleagues that, in essence, they were cheated out of a chance to gerrymander the state’s congressional districts to give Republicans a lopsided advantage.

It takes a thumbs-up from at least four of the nine justices to accept a case for review. Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas already have indicated they’re itching to side with the Tar Heel legislators. Justice Brett Kavanaugh has come close, declaring that the issues involved warrant the Supreme Court’s attention.

Of the court’s other two Republican appointees, Chief Justice John Roberts Jr. might be the least inclined to join with the previous four, based on a pivotal opinion he wrote in 2019. That would leave Trump-sponsored Amy Coney Barrett in position to cast the swing vote. To which we simply have to say, uh-oh.

Shiny new theory

True to their hyper-literal reading of the Constitution, Alito and his cohorts apparently think the clause putting state legislatures in charge of setting the “times, places, and manner” by which members of Congress are elected forecloses any review by state courts. Legal pundits across the land in past weeks and months have alerted us to the rising appeal in Republican circles of this so-called independent state legislature theory.

If a Supreme Court majority takes the bait, the consequences in North Carolina could play out like this. First, the state Supreme Court’s decision earlier this year to reject the legislature’s district map for U.S. House seats, and to substitute one devised under the court’s auspices, would be overturned.

The election this fall would proceed, using the substitute map. But from then on, the state would revert to a map gerrymandered to favor Republican congressional candidates to such a degree that the state justices declared it to be in violation of the state constitution on several grounds. And of course, similar rules would apply in other states, putting gerrymanderers of either party in the driver’s seat and hardening the partisan divide that has made progress against the nation’s challenges so difficult.

It’s true that the Elections Clause, on its face, deals only with congressional elections. Yet the ramifications of allowing legislatures to set the rules for those elections without any other state-level oversight could be wider.

For instance: Would it be feasible to operate federal and state elections on separate tracks? Not likely. The mechanics of voting – from registration to the casting and counting of ballots in various races – could wind up being engineered by legislators with an eye toward partisan advantage.

Assessing the “ISL” theory’s possible impact if it gets the Supreme Court’s endorsement involves a certain amount of speculation that can veer toward paranoia. Yet, as has been noted, the Constitution also puts legislatures in charge of determining how each state’s presidential electors are chosen.

So what if, having been given running room by the high court, legislators in a battleground state decided that because Donald Trump — in 2024 again the Republican presidential nominee — had again raised charges of election fraud, they could on their own say-so invalidate his opponent’s slate of electors and award those electoral votes to Trump?

It’s no coincidence that such an outcome would align with Trump’s efforts to overturn his 2020 election defeat via the manipulation of electoral votes. When that effort flopped, Trump’s last resort was to summon his supporters to Washington on Jan. 6, 2021 and urge them to “fight like hell.” Which they did.

The chief’s take

Chief Justice Roberts is emerging as something of a centrist on a court dominated by the likes of Alito and Thomas. In 2019, when the Supreme Court considered whether to bar partisan gerrymandering as imposed by the North Carolina legislature, Roberts’ majority opinion in Rucho vs. Common Cause held that the issue was a political one beyond the U.S. Constitution’s reach.

However, Roberts also wrote that the court “does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void.” He pointed approvingly toward various state efforts to make redistricting more fair, saying that “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.” That’s precisely what the N.C. Supreme Court did when it invalidated the congressional district map drawn by the Republican legislature last fall.

Further, the state court’s involvement followed a process set out in state law for resolving redistricting disputes. ISL proponents now say that under the Elections Clause, with the legislature having the final say in how congressional district maps are drawn, the state Supremes had no valid role. So was Roberts suffering from an overactive imagination? And what about his conservative colleagues, each of whom joined his 2019 opinion? (Justice Barrett, of course, had not yet replaced Ruth Bader Ginsburg on the bench.)

If it’s the legislature’s job to set congressional election rules, and those rules include possible state court review, then any conflict with the Elections Clause would seem to evaporate. Unless, that is, the U.S. Supreme Court decides the legislature didn’t know what it was doing when it wrote the rules as it did.

Voting rights advocates who had prevailed in the North Carolina courts pushed back strongly to try to convince the U.S. Supremes not to take the ISL case, known as Moore vs. Harper. They cited what they described as clear precedents contradicting the notion that state courts have no legitimate role in resolving federal redistricting disputes. At the Supreme Court, precedent is not inviolable, but it’s supposed to matter. We’ve seen recently how little it can matter to justices caught in the throes of wild-eyed originalism and with no one able to cool the fever.

Once seated, justices on the Supreme Court and throughout the federal judiciary are beyond the voters’ reach. But our leaders in the other two co-equal branches of government still must answer to results at the ballot box. The N.C. Council of Churches and other advocates for fair, open elections believe it’s now more important than ever to vote as if our democratic principles need defending.

We cannot tolerate leaders who fall short in their commitment to elections in which all votes matter and power is fairly allocated in keeping with the people’s will.

Steve Ford, former editorial page editor at Raleigh’s News & Observer, wrote this commentary for the North Carolina Council of Churches, which was first to publish it.

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GOP’s latest constitutional theory puts fair elections at risk