On December 7, the Supreme Court will hear oral arguments in Moore v Harper, a case about the gerrymandering of Congressional districts in North Carolina.
On its face, the case hinges on an abstract legal debate over the meaning of the word “legislature” in Article I, Section 4 of the US Constitution. But, as the culmination of nearly two decades of conflict over the scientific measurement of electoral discrimination, it is hard to exaggerate the threat Moore v Harper poses. Authoritarian forces are now trying to leverage this case to literally undermine the federal structure of the US Constitution and democracy as we know it. State legislatures would be virtually unrestrained in their pursuit of partisan advantage in Congress.
Gerrymandering in the courts
In our 2016 book Gerrymandering in America, my colleagues and I investigated the structural origins of the legal conflict over gerrymandering. We focused on a 2004 Supreme Court case called Veith v Jubelirer. In that case, the US Supreme Court ruled that, while partisan gerrymandering posed a threat to political equality as protected under the 14th Amendment, there was no consensus about what standards should be used to identify and remedy the constitutional violation that gerrymandering presents.
A proliferation of scientific activity and analysis followed that decision, producing a number of alternative and largely complementary ways to measure bias and discriminatory intent that were frequently used by the lower courts.
But then two more major gerrymandering cases came before the US Supreme court, Gill v Whitford and Rucho v Common Cause, decided in 2018 and 2019 respectively. In the latter case, Supreme Court threw up its hands in a controversial 5-4 partisan decision, declaring that “partisan gerrymandering claims present political questions beyond the reach of the federal courts [emphasis added].” That ruling effectively left partisan gerrymandering claims to be decided by the states.
In response to that decision, several state supreme courts, including North Carolina’s, accepted the challenge and struck down extreme gerrymanders, relying on evidence-based demonstrations that legislatures had drawn district boundaries that discriminated against targeted voters. In numerous states, on numerous occasions, state supreme courts ruled that partisan state legislatures failed to meet established scientific standards for holding free and fair elections.
But then many of the same anti-democratic forces who had worked to gerrymander North Carolina for years began to push something they call the “independent state legislature theory.”
Tortured logic and anti-democratic outcomes
If adopted by the Supreme Court, the so-called independent state legislature theory would insulate state legislatures from the rulings of their own state courts. As this great video from the Brennan Center for Justice explains, the tortured logic advocated in Moore v Harper would allow state legislatures across the country to ignore the established science of voting rights, create greater barriers to voting, corrupt election outcomes, and undermine trust in the electoral process.
It is equally important to recognize who is behind this doctrine: groups with ties to those who actively sought to overturn the 2020 presidential election; national groups such as the American Legislative Exchange Council, the Trump-linked America First Legal Foundation, and the Federalist Society-linked Taxpayers for Honest Elections; and megadonors such as Art Pope and others in Koch Network.
Recognizing the threat posed by this radical doctrine, conservative and progressive scholars alike have written amicus (friend-of-the-court) briefs to defend the Constitution. Stripping state courts of their authority to regulate federal elections could have tremendous procedural and substantive impacts, including the elimination of voter registration protections, early voting, and voting by mail. The federal courts could be flooded with litigation over what sorts of state court intervention would count as a violation of the new doctrine–an outcome that would itself undermine confidence in our election systems. Moreover, as scholar Rick Hasen has pointed out in his amicus brief (one of over 70 that have been submitted in this case to date), such a radical embrace of state legislative power would provide greater incentive for legislative parties to explicitly ignore the will of voters, including by sending alternative slates of electors to the Electoral College after a presidential election.
Even aside from the direct subversion of presidential elections, this radical doctrine contradicts the constitutional separation of powers between state and federal governments. It greatly facilitates the prospect that representatives to Congress could be selected by state legislatures rather than by the will of the people through elections. Allowing state legislatures to determine the composition of the House directly violates the Framers’ intent that the composition of the House of Representatives “ought to be dependent on the people alone.”
What you can do
You can help prevent this authoritarian power grab. The decision is expected this spring or summer, and we need to prepare for mass protest if necessary. In anticipation, and to put public pressure now on Congress (which could pass national election protections) and the courts, you can take the following actions to start educating your community about the issue:
–Talk with at least 10 of your family members, neighbors, co-workers, friends, and colleagues in civic and faith-based communities about the harms of Moore v Harper;
–Host or attend house parties and other events to support community education and investment in the #MapOurFuture movement to #PutPeopleOverPolitics. Find resources at scsj.org/mooreresources;
–Write editorial letters and use social media to bring attention to how the Moore decision could affect your community and the issues you care about;
–Tag @CommonCause and @CommonCauseNC on social media to share your activism and amplify your efforts. Together we can show the strength everyday people have to resist this authoritarian attack on our democracy.