Defending Democracy

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Republican lawmakers and their allies who cooked up the “independent state legislature theory” in recent years keep telling the world that the argument they’re advancing to the U.S. Supreme Court in the Moore v. Harper case is no big deal and that the outcry from scholars, judges, civil rights groups, and millions of citizens is all an overreaction.

But as editorials across North Carolina and in several major national news outlets have made clear in recent days, they’re not fooling anyone. The hard and sad truth is that by seeking to rob state courts of any authority to review legislative acts with respect to the conduct of federal elections, the Moore case poses a gigantic threat to American democracy. And this is true even if — as seems to be the case — Chief Justice Roberts and one or two of the less rabidly right-wing justices on the Court try to craft some kind of “middle ground” ruling.

As a fine editorial in Raleigh’s News & Observer explained yesterday, Roberts’ hints that state courts might still be able to play a role if their state constitution very specifically spelled it out wouldn’t be much of a compromise:

The “compromise” could be that courts have no say over gerrymandering, or perhaps that they could only intervene in the very worst instances of gerrymandering.

Considering the danger that a broader interpretation of the legislature’s argument could pose, a compromise might seem like a good thing. It’s not. Redistricting shouldn’t be up to legislatures only, which is pretty much why we have three branches of government in the first place.

“Well, it could be worse” is hardly a comforting refrain, especially when it’s used in reference to the continued viability of our democracy. Yes, it’s a relief that at least five Supreme Court justices seem likely to reject the worst version of a theory that could be truly disastrous for democracy. But even a milder ruling could be plenty damaging in its own way — checks and balances is not something that anyone should want to compromise on.

Meanwhile, a spot-on Capitol Broadcasting Company editorial on WRAL.com observed that our state constitution is very clear in its delineation of powers.

The job of the legislature includes enacting laws. The job of the courts includes determining whether the actions of the legislature are in accord with the State and U.S. constitutions.

And here’s the excellent conclusion:

“What I don’t understand is how you can cut the State Constitution out of the equation when it is giving the state legislature the authority to exercise legislative power,” said Justice Katanji Brown Jackson.

We agree with Justice Jackson. The U.S. Constitution delegates to the “legislature” the job of redistricting. It is the State Constitution that gives the General Assembly the authority to deal with the matter.  The State Constitution could, just as well, have given some other entity that authority.

Most significantly, the State Constitution – the voice and authority of the people — gives our courts the job of examining the work of the legislature. It is plain as the paper the words are written on.

The bottom line: One can only hope that the drumbeat of public opinion over the coming months helps convince Roberts to help turn a majority of the Court away from the dangerous and potentially disastrous path that the gerrymandering GOP lawmakers want to push it down.