Republican lawmakers have asked the U.S. Supreme Court to end state court oversight of federal elections and pro-democracy advocates are pushing back
It’s a pending U.S. Supreme Court case about the control of elections, a subject most people don’t think about every day. But Moore vs. Harper has become a rallying cry for the Southern Coalition for Social Justice, Common Cause NC and other voting rights groups as they try to engage grassroots activists in a constitutional debate that has the attention of legal scholars, elected officials, and state supreme court justices throughout the nation.
The case originating in North Carolina has the potential to give the General Assembly and legislatures around the country more control over how federal elections are run and how congressional districts are drawn. Legislators want to prevent state courts from having any say over laws they pass regarding federal elections.
The “Moore” in the case is North Carolina House Speaker Tim Moore, who, along with Senate leader Phil Berger and Republican legislators in charge of drawing new election districts, say they should be able to set the rules for federal elections and not have to defend them in state courts. This once-obscure idea has been dubbed “the independent state legislature theory,” and it relies on a section of the U.S. Constitution called the Elections Clause.
“Harper” is Rebecca Harper, a North Carolina voter who has been the lead plaintiff in several lawsuits over the years challenging gerrymandered districts.
Common Cause is a party in the case. Lawyers with the Southern Coalition are representing the organization.
A potentially momentous case draws nationwide interest and input
The U.S. Supreme Court agreed to take the case this year after Republicans appealed a state Supreme Court redistricting decision that forced lawmakers to redraw legislative and congressional districts. The state Supreme Court majority found the districts to be unconstitutional partisan gerrymanders. The court said the redrawn congressional districts were flawed. A team of special masters created congressional districts that candidates are running in this year.
The case has drawn interest and input from an array of organizations across the nation and the political spectrum. All told, 22 amicus or “friend of the court” briefs have been filed in the case.
One of the most notable briefs was submitted by the Conference of Chief Justices, a group made up of the highest judicial officers of all U.S. states and territories that rarely weighs in on a U.S. Supreme Court case. Last week, the conference filed a brief that is a strong denunciation of state Republicans’ interpretation of the Elections Clause.
“The Elections Clause does not bar state court review of state laws governing federal elections under state constitutional provisions,” the conference brief says.
In a brief supporting the Republican legislators’ position, the corporate-funded nonprofit American Legislative Exchange Council, or ALEC, noted that state court challenges to maps drawn by state legislatures are becoming more common, with challenges to congressional districts and federal elections laws based on “free elections” clauses in state constitutions.
“With increasing frequency, results-oriented state court judges are arrogating themselves power to regulate federal elections,” the ALEC brief says.
One reason voters around the country are looking to state courts to limit gerrymandering is because the U.S. Supreme Court indicated in a 2019 ruling that they were the appropriate forum.
In a North Carolina case involving a challenge to congressional districts called Rucho vs. Common Cause, the Court, by a 5-4 majority, ruled that federal courts could not referee partisan gerrymandering, and that it is a matter for states. “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” Chief Justice John Roberts wrote in the majority opinion.
Three justices who were part of that 5-4 majority in the Rucho case, however, Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch, signaled this year that they agree with the limits that North Carolina Republicans want to put on state courts. Justice Brett Kavanaugh also wrote that the case raises important issues that the high court should consider.
Rallying public opinion
The Southern Coalition and Common Cause NC are holding online and in-person meetings about the case for advocates and community activists. The goal is to take what the groups are calling the “#MapOurFuture tour” to all 100 counties by November, said Sailor Jones, associate director of Common Cause NC.
The in-person meeting in Wilson last week drew a small group of local residents to the county Agriculture Center to hear about the origins of the case and why they should care about the arguments and the outcome.
“Moore vs. Harper is on the ballot this fall,” Jones told them.
If the U.S. Supreme Court gives the legislature more power over elections, who gets elected to the state House and Senate will make a huge difference, Jones said. If, however, the Supreme Court says state courts can check the actions of state legislatures, “Which state court do you want in power?” he asked. “That’s on the ballot. While we have no control over what Justice Kavanaugh does today or any day, I want to make it perfectly clear that this case is on the ballot like no other case we have had before.”
George Revis, a Wilson resident who is active in the Democratic Party, said he was hearing about the case for the first time last week, but came away from the meeting convinced of its importance.
“It’s affecting everybody,” he said.
Revis expects public attention to the case will grow “once people know more about it.”
The Republican challenge to state court power is part of a decades-long history of North Carolina redistricting cases and could be the most consequential.
“North Carolina is a state that has been ground zero for redistricting and voting rights battles for decades,” Kathay Feng, Common Cause’s National Redistricting Director said during a call with reporters Monday. “As populations and power have swung back and forth between Democrats and Republicans, understanding what’s happening in North Carolina will give us insight into what could happen in American electoral politics.”
The last unchallenged redistricting plans in North Carolina were passed in 1971, Bob Phillips, Common Cause NC executive director said.
If the U.S. Supreme Court rules for North Carolina’s Republican legislators, more elections cases would end up in federal court “because state courts and state constitutions would be cut off as an avenue for protecting voters,” said Allison Riggs, co-executive director and chief counsel for voting rights at the Southern Coalition.
Riggs said she was optimistic that voters would win this case. The majority decision in the 2019 case is one of the reasons. It would have been strange for the U.S. Supreme Court’s majority to have said in 2019 “go to state courts and state constitutions if the U.S. Constitution prohibited that,” she said. None of the justices mentioned the Elections Clause in deciding that case, she said.
Cases over the last 200 years “strongly stand for the position that state courts and state processes matter in reviewing redistricting plans and in reviewing election laws. What the North Carolina legislators are proposing in front of the U.S. Supreme Court now is radical and is a dramatic departure from what we’ve seen for hundreds of years,” she said.
Further, checks and balances are baked into federal and state government, Riggs added.
It’s not just Republicans who gerrymander, Feng said. State courts in New York and Maryland this year tossed out congressional district maps drawn in those states that gave Democrats advantages.
“Partisan gerrymandering is a practice that is carried out by whoever is the majority party, whether that be Republicans or Democrats,” she said. “It just so happens that in more recent decades we’ve seen Republicans gain controls of state legislatures and expertly be able to manipulate the rules to be able to able to gain those extreme advantages.”
The Supreme Court is set to hear the case late this year or early in 2023.