Moore v. Harper, explained: How an NC redistricting case could have potentially disastrous consequences

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This essay is republished from the website of the Brennan Center for Justice. For more information on this topic, check out the recording of last week’s NC Policy Watch Crucial Conversation (which featured another Brennan Center expert) by clicking here.

What is Moore v. Harper about?

In Moore v. Harper, the Supreme Court will decide whether the North Caro­lina Supreme Court has the power to strike down the legis­lature’s illeg­ally gerry­mandered congres­sional map for viol­at­ing the North Caro­lina Consti­tu­tion. The legis­lat­ors have argued that a debunked inter­pret­a­tion of the U.S. Consti­tu­tion — known as the “inde­pend­ent state legis­lature theory” — renders the state courts and state consti­tu­tion power­less in matters relat­ing to federal elec­tions.

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 of the 14 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.

Because the U.S. Supreme Court has ruled that federal courts cannot hear partisan gerry­man­der­ing cases, 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.

What has happened so far in the case?

The Supreme Court hasn’t made any substant­ive rulings yet. In March, the Court rejec­ted the legis­lat­ors’ emer­gency appeal to put the gerry­mander back in place imme­di­ately. At the urging of four justices, however, the legis­lat­ors filed a regu­lar appeal asking the Court to consider whether to rein­state their map for elec­tions after 2022. In June, the Court agreed to take up the case. The parties will file briefs over the summer and fall, with oral argu­ment happen­ing there­after. The Court will likely issue its decision before July 2023.

What are the gerry­man­der­ers arguing before the Supreme Court?

In urging the Supreme Court to rein­state the gerry­mandered congres­sional map, the North Caro­lina legis­lat­ors are rely­ing on an unten­able misread­ing of the Consti­tu­tion’s Elec­tions Clause known as the inde­pend­ent state legis­lature theory.

The Elec­tions Clause deleg­ates to states the power to regu­late federal elec­tions while giving Congress the over­rid­ing author­ity to make or alter such laws. Proponents of the inde­pend­ent state legis­lature theory — like the gerry­man­der­ers — read the Elec­tions Clause to give state legis­lat­ors near-exclus­ive author­ity to regu­late federal elec­tions, prohib­it­ing any other state entity — like state courts or governors — from placing checks and balances on that power. In this case, the gerry­man­der­ers are arguing that the theory licenses them to viol­ate the state consti­tu­tion when draw­ing congres­sional maps and that the state courts do not have the power to stop them.

What’s wrong with the inde­pend­ent state legis­lature theory?

The inde­pend­ent state legis­lature theory runs contrary to the consti­tu­tional text, history, prac­tice, and preced­ent. Read more

Green Party ordered on the ballot in Senate race

North Carolina Green Party Senate candidate Matthew Hoh says he’s ramping up his campaign now that a federal judge has ordered that the party’s nominees be placed on the 2022 ballot.

“From the very beginning, we have worked towards a speedy resolution to being placed onto the ballot; this is something that should have occurred two months ago,” Hoh said in an email. “We are excited to finally see troubling obstructions to democracy and the democratic process fall to the wayside, so we can lift up the values that compelled me to run as a candidate, in the first place.”

On Friday, U.S. District Court Judge James C. Devers ordered the State Board of Elections to put Hoh and state Senate District 16 candidate Michael Trudeau on this year’s ballot.

The decision comes after the board reversed a prior decision that questioned the validity of some petition entries and officially recognized the party.

Investigators with the board continue to look into whether a portion of the petitions submitted were fraudulent, but in its decision Monday the board heard evidence that there are not enough in question to put the party below the threshold required.

According to the Board of Elections running tally, there are currently 15,472 valid signatures, well above the 13,865 required.

The state’s two largest parties took sides in the months long controversy over the validity of petitions gathered to recognize the party, which would allow its candidates access to the ballot.

GOP officials have backed the Green Party’s effort and the National Republican Senatorial Committee filed a brief in support in the federal lawsuit.

National and state Democratic Party organizations, including the Democratic Senatorial Campaign Committee, challenged recognition and after the election board decision state party officials threatened further legal action in state court to prevent recognition for the 2022 cycle.

That effort is now likely moot after Devers, chief judge for the Eastern District, asserted federal jurisdiction in the matter in his Friday decision.

Hoh said he’s looking forward to an active campaign in the last 100 days of the election and will rely on a network of grassroots volunteers to get the word out.

“We plan on continuing to reach out to those most impacted and indeed, left behind, due to the policies of the Democratic and Republicans parties,” Hoh said. “We look forward to showing up and reaching out to those fed up with the two-party system.”

Hoh joins the three-person ballot of Democrat Cheri Beasley, Republican Ted Budd and Libertarian Shannon Bray. Read more

Five things to know about the next big North Carolina voting rights case

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Moore v. Harper case could free states to alter the fundamentals of federal elections

The U.S. Supreme Court is prepared to hear Moore v. Harper later this year, an important case that could upend how elections are conducted across the country.

What’s at stake:

  • The case involves a fringe legal theory called the “independent state legislature theory.”
  • North Carolina state lawmakers used the theory in a bold attempt to dodge a landmark state court ruling that struck down their gerrymandered voting maps in a lawsuit filed by our North Carolina office

Here are five things to know about the upcoming U.S. Supreme Court case, the so-called “independent state legislature theory,” and how Common Cause is defending our rights for a free and fair democracy where every vote counts.

 1.) There’s no historical basis. The “independence state legislature theory” would reverse decades of legal precedent by taking away the ability of state courts to review whether state lawmakers followed the law when it comes to setting election policies.  It’s akin to pulling the referee out of a game midway, and just hoping the players on the field stick to the rules.

The nation’s highest court, if it goes along with this long shot of a legal appeal, would also be contradicting itself. Just three years ago, in Rucho v. Common Cause, the Supreme Court pointed to state courts as the ones who should decide if partisan gerrymandering is permissible in the redistricting process. And in 2015, the Supreme Court ruled in an Arizona case that the court interpreted mention of “legislature” to include the entire legislative process, not just the state legislature itself.

2.) This decision could upend our nation’s election systems. U.S. Rep. Zoe Lofgren (D-Calif.) summed up the worst-case-scenario in a Congressional hearing about the “independent state legislature theory” held last week.

“Professional, nonpartisan election administration is a cornerstone of the modern American right to vote,” Lofgren said. “That entire apparatus could vanish overnight, at least for federal elections.”

Removing the ability of the state judiciary to review decisions regarding our federal elections, from voting maps to whether early voting hours should be extended or curtailed, will give partisan interests more ability to manipulate decisions to their liking.

Simply put, it would change how we’ve run elections in the United States for more than 200 years. Read more

Make plans to join us tomorrow: Moore v. Harper: The latest NC gerrymandering case and its implications for American democracy

Join us online this Thursday!

Crucial Conversation: Moore v. Harper: The latest NC gerrymandering case and its implications for American democracy

                 Left to right: Allison Riggs, Michael Li and J. Sailor Jones

Experts warn of election ‘havoc’ across the U.S. if North Carolina case succeeds