By Mark Hedin<\/p>\n\n\n\n
On Dec. 7, the U.S. Supreme Court will hear the case a leading conservative federal judge, now retired, has called \u201cthe single most important case for American democracy in the nation\u2019s history.\u201d<\/p>\n\n\n\n
The case, Moore v. Harper, was brought by Republican legislators from North Carolina alleging that the so-called \u201cElections Clause\u201d of the U.S. Constitution bars anyone but state legislatures from deciding how to run an election.<\/p>\n\n\n\n
Should they convince the court of the merits of their independent state legislature theory, politicians of either party could conduct elections however they chose, free of concern that a court or a governor could interfere.<\/p>\n\n\n\n
So, for instance, the North Carolina Supreme Court\u2019s 2013 finding that new legislative maps drawn after the 2010 Census were \u201cthe most restrictive voting laws North Carolina has seen since the era of Jim Crow\u201d and \u201ctargeted African American voters with almost surgical precision\u201d would be toothless.<\/p>\n\n\n\n
And similarly free from the potential review would be the raft of new laws in states across the country that affect the numbers and locations of polling places, their hours of operation, the freedom of voters to cast ballots by mail or absentee, how those votes are counted, how elections are reviewed, how people are registered to vote or purged from registration rolls, what behavior is allowed or forbidden at polling places and more.<\/p>\n\n\n\n
\u201cThere\u2019s been a lot of discussion about this being a \u2018monster case\u2019 with almost untold consequences in every aspect of voting rights and election administration,\u201d Allison Riggs, one of the lawyers who will be arguing the case in Washington next week, said at a press briefing Nov. 29.<\/p>\n\n\n\n
She\u2019s been before the Supreme Court before, in a Texas redistricting case in 2018 and another North Carolina case in 2019.<\/p>\n\n\n\n
\u201cBut I want to emphasize the racial justice aspect of this particular case. It\u2019s not a North Carolina-only phenomenon. Across the country and particularly in the South, there are significant racial impacts to partisan gerrymandering. The \u2018Southern strategy is alive and well.\u201d<\/p>\n\n\n\n
\u201cWhen Republicans took control of the North Carolina state legislature in 2011, they drew districts that packed as many black voters into as few districts as possible, thus limiting their political power.\u201d<\/p>\n\n\n\n
And when courts ruled against using those district maps, she said, \u201cNorth Carolina legislative leaders said, \u2018OK, well, if we can\u2019t racially gerrymander, then we\u2019ll partisan gerrymander\u2019 to achieve the same outcome, which is limiting Black political participation, limiting black power and assuring a partisan outcome.\u201d<\/p>\n\n\n\n
\u201cWe see lots and lots of convenient explanations for discriminatory and disempowering redistricting plans,\u201d she said, but \u201cpartisan gerrymandering, in my experience, has been used as a tool to disenfranchise voters of color.\u201d<\/p>\n\n\n\n
The immediate issue in Moore v. Harper is the North Carolina legislature\u2019s effort to prevail over court rulings that have found the gerrymandered political districts the legislature passed \u2014 and that North Carolina law bars the governor from vetoing \u2014 deny voters\u2019 the ability to participate in free and fair elections.<\/p>\n\n\n\n
Joining Riggs at the briefing was Tyler Daye, who worked for the North Carolina chapter of Common Cause, one of the respondents in the case, to boost public participation in last year\u2019s redistricting process.<\/p>\n\n\n\n
He described how the North Carolina General Assembly \u2013 the state senate and house \u2013 conducted its public business out of public view, destroyed records of its work and ignored what public input it did allow as to what would truly be representative maps.<\/p>\n\n\n\n
But \u201cthis case is really about power, and the power among our branches of government,\u201d Daye said.<\/p>\n\n\n\n
The plaintiffs\u2019 argument for an \u201cindependent state legislature theory\u201d of election law, Daye said, \u201cgoes beyond just redistricting. And that is what\u2019s so concerning.\u201d<\/p>\n\n\n\n
\u201cObviously, state legislatures are controlled by different parties throughout the states. No matter which party you like, we don\u2019t want one party to have that type of unfettered power.\u201d<\/p>\n\n\n\n
Here is the \u201celections clause\u201d (Article I, Section 4, Clause 1) from the U.S. Constitution, as passed in 1788:<\/p>\n\n\n\n
\u201cThe Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.\u201d<\/p>\n\n\n\n
And in 1912, to name one example, Congress did, in fact, make a significant change to election law, passing the 17th amendment to the Constitution, which changed how U.S. Senators are chosen, from being appointed by state legislatures to instead being voted for in statewide elections.<\/p>\n\n\n\n
And more generally, that authority reserved for state legislatures has been understood from Alexander Hamilton\u2019s Federalist Papers (\u201cthe Elections Clause \u2026 is expressly restricted to the regulation of the times, the places, and the manner of elections\u201d) to recent years, to be much more limited than what is being asserted now in Moore v. Harper.<\/p>\n\n\n\n
Dictionaries of Hamilton\u2019s era defined \u201cLegislature\u201d not as a state\u2019s specific senate or house of representatives, but rather as a description of whoever had the authority to pass laws in that state.<\/p>\n\n\n\n
That understanding still held more than 200 years later when, in the 2015 \u201cAIRC\u201d case, the Supreme Court affirmed Arizona voters\u2019 power to create via initiative an independent redistricting commission that the state legislature then unsuccessfully challenged.<\/p>\n\n\n\n
And in 1995\u2019s \u201cThornton\u201d case, concerning term limits, the Court ruled that \u201cthe Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.\u201d<\/p>\n\n\n\n
Even if Common Cause and its fellow travelers turn back what Riggs referred to as the plaintiffs\u2019 \u201cradical and fringe\u201d independent state legislature theory, there\u2019s still plenty of work to do in safeguarding voting rights nationwide, she noted.<\/p>\n\n\n\n
Because until there are national voting rights standards, each state remains a separate battleground.<\/p>\n\n\n\n
Riggs will be advocating on behalf of Common Cause and other respondents, including Rebecca Harper, who initially challenged North Carolina\u2019s legislative maps in 2021. Timothy Moore is the speaker of North Carolina\u2019s House of Representatives.<\/p>\n\n\n\n