All eyes on NC election case
The U.S. Supreme Court will hear oral arguments in the Moore v. Harper case on Dec. 7. The case focuses on redistricting, but it also involves an obscure legal theory called the independent state legislature doctrine. It could lead to massive changes in how American elections work, with a ruling expected in 2023. In this special report, The News & Observer and The Charlotte Observer explore the arguments, what led to this case and what's next.
- ’The single-most important case on American democracy.’ Could it overturn elections?
- Supreme Court’s ‘independent state legislature’ case: How we got here, and what’s next
North Carolina’s upcoming case at the U.S. Supreme Court has the potential to upend elections nationwide, in time for the 2024 presidential race.
Backed by Republican leaders at the N.C. General Assembly, the crux of the argument is that they and all other state legislators should have much broader power to write election laws, with courts mostly not allowed to stop them by ruling their actions unconstitutional.
They’ve been tight-lipped about the case since filing it this spring, mostly preferring to avoid commenting on it to reporters and instead doing their talking through legal briefs.
“North Carolina courts have usurped the General Assembly’s authority to regulate congressional elections,” wrote N.C. House Speaker Tim Moore in one brief in the case partly named for him, Moore v. Harper.
This case is technically an appeal of a gerrymandering ruling, which found state lawmakers violated the constitution with new Congressional maps drawn after the 2020 Census. However, it’s far from just that.
Kathay Feng, who leads anti-gerrymandering efforts for the national group Common Cause, calls it “the case of the century” — and not out of admiration.
“It is a case that asserts a bizarre and fabricated reading of the United States Constitution ... to create a situation where elections are already rigged from the start,” she said.
Beyond redistricting the case also has the potential to change how North Carolina and the 49 other states handle everything from early voting and mail-in ballots rules to voter ID, recounts, post-election audits and anything else that could possibly affect an election.
Critics say it has the potential to end democracy as we know it.
Eric Holder, a Democrat and former U.S. attorney general under Barack Obama, said it “should keep every American up at night.” Michael Luttig, a Republican and retired federal judge who George W. Bush considered nominating to the Supreme Court, recently called it “the single-most important case on American democracy” of the last 250 years.
Yet supporters of the legislature’s case point to a clause in the U.S. Constitution that, in their opinion, gives near-unlimited power over federal elections to the legislative branch, with almost none of the usual checks and balances.
Just because the system hasn’t worked like that in the past doesn’t mean that’s not what the Founding Fathers wanted, they say.
“Activist judges and allied plaintiffs have proved time and time again that they believe state courts have the ultimate say over congressional maps, no matter what the U.S. Constitution says,” N.C. Senate leader Phil Berger said in March, when the case began. “We must continue this fight to restore the primacy of the legislature and put an end to these efforts to undermine its constitutional duty.”
Judges becoming too activist?
Berger’s statement echoes what other GOP leaders have also said about this case: Their hand was forced by judges who have gotten more and more aggressive in striking down election laws as unconstitutional.
In recent years under Republican leadership at the General Assembly — and a Democratic majority at the N.C. Supreme Court — a number of political lawsuits have led to state-level cases with huge implications for how elections are conducted.
Those include gerrymandering cases decided in 2019 and 2022 as well as lawsuits over lawmakers’ ability to amend the constitution to require voter ID and a ban on ex-felons voting after they leave prison — all of which have ended in rulings against the legislature. More cases are pending, including another one over voter ID and one advancing a state-level version of the same legal theory that’s about to be heard at the U.S. Supreme Court.
“Moore v. Harper is predicated on who has the constitutional authority to set election policy – seven state Supreme Court justices or 170 state legislators,” Lauren Horsch, a spokeswoman for Berger, said in an email. “The U.S. Constitution’s Elections Clause is clear that it’s the state legislatures, but recently state courts have taken it upon themselves to set election policy. In North Carolina, we have a state Supreme Court that has become a legislative body.”
And it’s not just North Carolina judges in the cross-hairs.
The national Republican Party wrote a brief to the Supreme Court asking the justices “to step in and then reign in the bedlam that is ever increasingly plaguing the redistricting process (specifically) and election law (more generally).“
The other side, however, is unconvinced that this case is necessary because judges have become too aggressive in stepping on the toes of the legislative branch.
Version of the theory have been shot down by the U.S. Supreme Court several times in the past but always had some support on the bench — including winning support from three arch-conservatives, Justice Clarence Thomas and the late William Rehnquist and Antonin Scalia, during the Bush v. Gore case in 2000.
Many expected to see it again soon, now that the court has a new 6-3 conservative majority.
Luttig recently told reporters that the theory underpinning North Carolina’s case at the Supreme Court, the “independent state legislature” doctrine, is the same legal theory former President Donald Trump tried to use to stay in power despite losing the 2020 election.
Trump likewise lost his legal arguments, and the Supreme Court declined to even hear his appeal in December 2020. But Luttig said there was never a question that the court’s most conservative wing wanted to resurrect the theory. They may have just wanted a case that didn’t involve Trump, he said, and North Carolina was the first to offer an opportunity.
Irving Joyner, a frequent lawyer for the NAACP who teaches at N.C. Central University’s law school in Durham, agreed that the case has little to do with the judges on the state’s highest court.
“It was always going to come up,” he said in a recent interview.
Joyner has been involved in multiple recent lawsuits against the General Assembly, and has informally advised outside groups on some briefs filed in Moore v. Harper. He questions the logic underpinning the whole theory.
State courts were serving as a check on state legislatures even before the Constitution was written, he said, and have continued to do so ever since.
“Historically, the argument doesn’t make sense,” he said.
What’s next?
There are a number of possible outcomes in the case, after the oral arguments on Dec. 7 and the ruling that’s expected sometime in 2023.
So far it’s anyone’s guess how the court might rule.
One outcome is that the legislature loses outright, and the status quo remains in place.
Things get more complicated should the court rule in favor of Republicans. The court could keep its ruling narrowly focused on redistricting alone, and allow state courts to still weigh in on other aspects of federal elections.
Or it could embrace a range of other, much more aggressive interpretations of the theory.
Some say it could allow state legislators to overturn future presidential elections. Others say it could create a convoluted system of election rules that would end in people being disenfranchised, as elections split into two systems — one for federal races and another for state races — unlike the system we have now, where all the races are on one ballot with one set of rules.
While the opposition to the theory is bipartisan, Republicans who do support it have brushed off any criticism as handwringing by liberals.
Regardless, they say, it’s clear that they should win based on the Elections Clause in the Constitution — which says that legislatures should have the power to decide the time, place and manner of elections.
Moore wrote in one legal filing that he and his fellow legislators need the court to explicitly grant them this extra authority “to secure self-government” the way the Constitution intended.
“The state supreme court’s usurpation of that authority — pursuant to vague and indeterminate state constitutional provisions securing free speech, equal protection, and free and fair elections — simply cannot be squared with the lines drawn by the Elections Clause.”
Redistricting and election administration
Last year, after the 2020 Census, Republican lawmakers drew new districts that would have all but guaranteed their party to win 10 of the state’s 14 U.S. House seats even if the statewide vote split 50-50, The News & Observer has reported.
They also drew legislative maps that would’ve likely given the GOP 60% of seats in the legislature, enough to override any vetoes from Democratic Gov. Roy Cooper, even without winning 60% of the vote.
All those maps were ruled unconstitutional and redrawn; the new court-ordered congressional map ended up in a 7-7 split instead of 10-4, and Republicans came up one seat short of a supermajority in the legislature.
But at least the Congressional map will be redrawn ahead of the 2024 elections, The N&O has reported. The question of whether lawmakers are allowed to redraw their own maps for the state legislature, or revert to the ones that were ruled unconstitutional, could depend on the outcome of Moore v. Harper — and whether state courts decide to apply it for state-level elections, too, now that Republicans have flipped control of the N.C. Supreme Court.
Looking beyond the redistricting implications, and at the alleged potential for electoral chaos, the concerns have reached the highest levels of the federal government.
President Joe Biden’s administration will join in and argue against the theory, even though the government isn’t a party to the case. It’s expected to focus less on the implications for future presidential elections and more on claims that a win for North Carolina will shatter election administration across the country, leading to different rules for different types of elections and causing mass confusion.
The N.C. State Board of Elections made a similar argument. So have numerous experts, outside groups and other interested parties.
John Korzen, a professor at Wake Forest University’s law school in Winston-Salem, spent 45 pages in one brief arguing that a win for the legislature would make elections much more expensive in the future, and also much more confusing. Some valid ballots might be accidentally thrown out, he wrote, even as other ballots that should’ve been thrown out might get accidentally counted.
“Voters need reassurance that election procedures produce accurate results,” Korzen wrote. “The more complicated and complex the system is, the more voters will question an election’s integrity.”
That sort of concern isn’t just philosophical, adds a brief signed by 10 retired four-star generals and other top military leaders.
“The weakening of election integrity creates serious threats to national security,” they wrote in a legal brief for the case.
“Civil unrest resulting from public mistrust of electoral outcomes” would create pressure on the military to crack down on protesters, they wrote, which could then create “opportunities for our enemies to sow division and reap the benefit of a fragmented and divided nation.”
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This story was originally published November 27, 2022 6:00 AM.
