On Dec. 7, the U.S. Supreme Court will hear arguments on Moore v. Harper, which will decide whether the North Carolina state Supreme Court has the power to strike down the legislature’s illegally gerrymandered congressional map for violating the North Carolina constitution—or whether state lawmakers should have total control over election rules, without any checks or balances.
In 2021, North Carolina’s Republican-controlled state legislature passed a congressional map that was grossly gerrymandered (drawn in a way that gives one party an unfair advantage over its rivals in elections–in this case, Republicans).
The map was so extremely partisan that an evenly-divided statewide vote would have effectively given 10 of the state’s 14 U.S. House seats to Republicans and only four to Democrats. Statistically, this map was more favorable to Republicans than 99.9999% of all possible maps, according to the nonpartisan Brennan Center for Justice.
Voters contested the map, saying that it violated the North Carolina constitution’s “free election clause,” as well as other provisions. Earlier this year, the North Carolina Supreme Court struck down the map, ruling it an “egregious and intentional partisan gerrymander…designed to enhance Republican performance, and thereby give a greater voice to those voters than to any others.”
After that, the Republican-dominated legislature proposed a second gerrymandered map, which resulted in a state court ordering an expert on the process of drawing congressional districts to create a fair map for the 2022 elections. Republican legislators were not pleased, however, and asked the U.S. Supreme Court to step in and reinstate their gerrymandered map.
Republican legislators are using the “independent state legislature (ISL) theory” in their defense. The ISL theory is a radical legal doctrine based on a biased reading of two constitutional clauses; it’s a specific reading of the Constitution that argues the state legislature has the power to control federal elections in their state, without interference from the courts.
The Republicans’ embrace of the ISL theory comes amid their continued efforts to gerrymander districts in key swing states—including North Carolina—in order to entrench their power. But the consequences go beyond gerrymandered district lines, and Moore v. Harper could have momentous implications for elections both on the federal and state levels.
The question in Moore is whether the Supreme Court of North Carolina, applying the state constitution, can override the legislature’s proposed congressional districts. But if the U.S. Supreme Court embraces the ISL theory put forth by Republican lawmakers, the justices could effectively give state lawmakers total power over setting laws for elections involving members of the House, Senate, and presidential electors—and take away the ability of governors or state courts to check their power based on state constitutions.
The implications of a ruling in favor of Republicans are far-reaching, but among them is the fact that a Republican-controlled legislature could, theoretically, disregard a Democratic presidential candidate’s victory in the state’s popular vote and appoint its own presidential electors.
As The Atlantic put it, the Supreme Court’s “right-wing supermajority is poised to let state lawmakers overturn voters’ choice in presidential elections.” Some experts have even gone so far as to say this case could “upend democracy.”
As radical as this proposition is, three justices—Samuel Alito, Neil Gorsuch, and Clarence Thomas—have indicated their openness to the theory over the past two years in judicial statements and dissents, and a ruling by the Court’s conservative majority that effectively implements the ISL theory is well within the realm of possibility.
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