Experts Warn Supreme Court Backing GOP’s ‘Dangerous’ Legal Theory Could Destroy American Democracy


Progressive activists in North Carolina warned on Monday that a once fringe conservative legal theory expected to be adopted by the US Supreme Court in the coming months poses a serious threat to representative democracy.

“If the legislature were to succeed in Moore v. Harperit could threaten the state court’s ability to provide this crucial check on the legislature.”

The highest court in the land should hear Moore v. Harpera case involving the racially rigged Congressional map of North Carolina, in December or early next year, which means the outcome will not affect the 2022 midterm elections.

After North Carolina’s GOP-controlled legislature prejudicially redrew the state’s congressional map to lock down 10 of its 14 districts for Republicans, the state’s Supreme Court struck down the map, which she describe as a “blatant and intentional partisan gerrymander…designed to improve Republican performance”.

Republican lawmakers in the state appealed, citing the Independent State Legislature (ISLT) theory, which the pro-democracy group Common Cause calls an increasingly popular “dangerous legal argument” in right-wing circles claiming that federal elections can only be regulated by a state’s lawmakers, not its judiciary — or even its constitution.

The Elections Clause and the Presidential Electors Clause of the U.S. Constitution explicitly authorize state legislatures to regulate federal elections and appoint electors, respectively.

However, according the Brennan Center for Justice:

The dispute centers on how to understand the word “legislature”. The long-standing understanding is that it refers to the general legislative processes of each state, including all normal procedures and limitations. Thus, if a state’s constitution subjects legislation to blockage by a governor’s veto or citizen referendum, election laws can be blocked by the same means. And state courts must ensure that federal election laws, like all laws, are consistent with their state constitution.

Proponents of the independent state legislature theory reject this traditional reading, insisting that these clauses give state legislatures exclusive and near-absolute power to regulate federal elections. The result? When it comes to federal elections, lawmakers would be free to violate the state constitution and state courts could not stop them.

Purveyors of former President Donald Trump’s “big lie” that the 2020 presidential election was stolen – including Ginni Thomas, a right-wing activist and wife of Justice Clarence Thomas – invoked the ISLT during their efforts to pressure state lawmakers to help overturn President Joe Biden’s election decision. College victory.

Experts, including Michael Luttig, a former federal judge and prominent conservative jurist, have warned that the ISLT is a central pillar of the “Republican plan to steal the 2024 election”.

Speaking about the upcoming US Supreme Court hearing Moore v. Harper During a Monday webinar co-hosted by the Southern Coalition for Social Justice, Kathay Feng, National Redistricting Director at Common Cause, said “the date hasn’t been set yet, but what we know is the question. in dispute: whether state legislatures should have absolute and supreme power to create electoral laws and redistricting maps for congressional elections.”

Feng blasted what she called the GOP’s “low and dirty” card rigging as “illegal and unconstitutional partisan gerrymanders with devastating consequences for voters, especially black voters, and their ability to elect the candidates of their choice”.

“The danger is not only that partisan political leaders can draw lines without any checks, but also that we the people no longer have representative government,” she said. “Our government will be of, by and for politicians, not ordinary people.”

Common Cause North Carolina executive director Bob Phillips called his state “number one in gerrymandered maps and number one in redistricting lawsuits.”

“I don’t know if there is any other US state that holds this distinction, but every election from 2012 to 2020 was organized and held…by ​​cards that were ultimately ruled unconstitutional,” he said during the webinar. “So we have this sordid past.”

“We’ve had some success in state courts securing relief for the people of North Carolina, which we believe is vitally important,” Phillips added. “And if that were taken down by the… Supreme Court of the United States making the wrong decision, we can just imagine what that would mean in North Carolina and across the country, with legislatures being able to freely rig the lines of Congress and remove the vote, whether it’s purge voters, make barriers to voter access, and just an assortment of things.”

“State courts should not be left out of the equation,” he insisted.

Tyler Daye, manager of policy and civic engagement at Common Cause North Carolina, told the virtual meeting that “my first experience of voting was in gerrymandered congressional districts.”

“I lived in the old 12th district, which stretched from Charlotte to Greensboro,” he explained. “This district was teeming with black voters to dilute our voting power. It was more like a river than a congressional district.”

Daye was referring to the practice of “packing” voters of color into the same district in order to prevent them from having greater political power in surrounding districts. The related practice of “cracking” is the splitting of communities of color to dilute their power in a given neighborhood.

“Learning about how my voting power was being diluted made me want to get involved in the fight to end gerrymandering.”

“[My] has been called the most gerrymandered district in the country,” Daye added. “Learning how my voting power was diluted made me want to get involved in the fight to end gerrymandering.

“Fortunately, the North Carolina State Supreme Court acted as a check on the state legislature in a landmark decision for our state,” he said. “Ultimately, the North Carolina Supreme Court appointed special masters to draw the map of Congress that we have now. These maps aren’t perfect, but they are a significant improvement over the extreme gerrymanders of the map. original from Congress.”

“If the legislature were to succeed in Moore v. Harperit could threaten the state court’s ability to provide this crucial check on the legislature,” Daye warned.

Allison Riggs, legal counsel in the case and co-executive director of the Southern Coalition for Social Justice, told attendees that “we are optimistic about the case we are taking to court.”

“In 2019, five of the justices of the United States Supreme Court, in a majority opinion written by Chief Justice John Roberts, said litigants and people fighting for fair cards were not doomed to scream into the void and could go to state courts to seek relief under state constitutions,” Riggs noted, referring to a Case in which she argued against a previous North Carolina Congressional card that had been struck down in a district court due to partisan gerrymandering.

“If the rogue theory pushed here – the legislative theory of the independent state – were applicable in the way it is defended,” she continued, “then the five judges who wrote this opinion would have no reason for saying so… It would be passing, illogical and strange for them to have said to go to state courts and state constitutions if the US Constitution prohibited that.”

“Similarly, there have been a number of cases over the past 200 years that strongly support the position that courts and state processes are important for reviewing redistricting plans and reviewing electoral laws,” added Riggs. “So what North Carolina’s legislative leaders are now proposing before the United States Supreme Court is sweeping and a stark departure from what we’ve seen for hundreds of years.”


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