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.