The Dangers of Moore v. Harper

If the Supreme Court aligns with Moore, it would encourage election deniers and the spread of anti-democratic legal doctrine.

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The Supreme Court has begun a new term, and the docket has been released. By the summer of 2023, the Supreme Court will hear and decide a case that could have an extremely influential effect on how both state and federal elections are run. The origin of the case is North Carolina’s Republican legislature’s attempt at extreme partisan gerrymandering. Moore v. Harper will decide if the North Carolina Supreme Court and the North Carolina state constitution have the power to nullify the legislature’s illegally gerrymandered congressional map.

The case hinges on independent state legislature theory (ISL). ISL theory argues that state legislatures have the power to set state election rules independently from the state judiciary. If the Supreme Court upholds this doctrine, it would strip the power of judicial review from state judiciaries and allow an omnipotent legislature that could violate the state constitution. This would allow for partisan gerrymandering, the authority to pass voter suppression laws, loss of the gubernatorial veto, and the ability to overturn the results of a presidential election and appoint a new set of electors. There is no solid backing for this theory.

The main argument that the proponents of the ISL theory fall into is the Elections Clause — found in Article 1, Section 4 of the Constitution. The clause establishes the power of the state legislatures the prescribe the “manner” of holding elections. North Carolina Republicans claim that this clause gives the state legislature ultimate power in state elections, but they fail to mention that the end of the clause leaves the ultimate power to Congress. The framers did this because they were concerned that the states would adopt unfair election procedures or attempt to undermine the national government. It is an indisputable fact that the framers created the idea of checks and balances within each branch of the government to prevent any one branch from becoming more powerful than another. The ISL theory directs more power to the state legislatures, endangering practical and just voting laws in North Carolina. Prohibiting judicial review for the state judiciary is in direct contrast to the framers' intent.

The independent state legislature theory is simply a political strategy to justify illegal and unconstitutional intervention in elections. The danger of the Court voting in favor of Moore is that there would be a significant change in the way elections are held in the United States by denying any judicial review on partisan gerrymandering. It would also create a precedent that would be used to support the actions of federal election deniers. This is extremely dangerous as we are already living in a time where a significant number of Republicans actively deny the legitimacy of the 2020 election. Election deniers attempted to do exactly what the framers were concerned about when they attempted to stop former Vice President Pence from certifying the 2020 election — a complete disruption of the process of the national government. The certification of ISL theory would likely help Republicans rewrite election laws to their advantage.

The future of the Supreme Court docket will also be affected by this case, regardless of how it is decided. Many have called into question why this case has been brought to the Supreme Court in the first place. Moore v. Harper gives reason for other unconstitutional, power-hungry doctrines to be brought to the Supreme Court. The knowledge that this specific theory was selected and will be argued before the Supreme Court motivates other politically extreme groups to fight for their anti-democratic theories to be legitimized in court. The independent state legislature theory is just one example of the growing support of anti-democracy rhetoric in the United States.

The oral arguments for Moore v. Harper are planned for December 7th, 2022.

Fionnuala Schefers is a first-year Political Science major in the School of Public Affairs. She is a staff writer for the American Agora.

Image courtesy Victoria Pickering, Creative Commons.