Monday, October 31, 2022

If Your Hair Isn't on Fire About Moore v. Harper, You Haven't Been Paying Attention


Last Friday, some good folks from Common Cause were in Boone to sound the alarm about Moore v. Harper, the election law case arising out of North Carolina gerrymandering that will be heard at the Supreme Court very soon. I wrote about this case back in July, and already my hair was smoldering. It's fully on fire now.

They only need 5 of these votes

After the North Carolina Supreme Court threw out the first set of Congressional district maps, the Republican leaders of the NC General Assembly -- I call them BergerMoore for short -- appealed to the US Supremes and used a novel theory, arguing an extremist version of state's rights, "the independent state legislature doctrine," which maintains that no state court can interfere in a state legislature's desire to seize partisan power and hold it by gerrymandering and other means (like creating barriers to vote, purges of voters, cuts to popular early voting options, fewer protections against voter intimidation).

At the time the US Supremes declined to override the NC Supremes, justices Thomas, Alito, and Gorsuch dissented and said they thought the independent state legislature doctrine had merit and would welcome a test case going forward. That's the case they'll hear argued on December 7th (Pearl Harbor Day!), and there's every chance in this twisted conservatives-uber-alles world that Thomas, Alito, and Gorsuch will get the votes of Kavanaugh and Barrett, and BergerMoore will be unleashed to do their worst.

The Dobbs decision officially turned pregnant women into second-class citizens and was perhaps just the opening act of a complete scenery-sweeping arrival of the new authoritarianism that was always Trump's wet dream.

The independent state legislature "doctrine" originates (favorite word among extremist judges) from the U.S. Constitution’s election clause, which says that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” That last clause has previously been interpreted to mean "by the legislative process," which would include voter petition initiatives to establish independent redistricting commissions, for example, or challenges via law suits in state courts. The independent state legislature doctrine could also give lawmakers control over issues such as voter qualification, voting by mail, and other election procedures, effectively taking voting procedures out of the hands of the State Board of Elections and giving them to BergerMoore.

Heed the Call for Citizen Action

Many of the most conservative legal minds in the nation have come out strongly against the independent state legislature doctrine, including J. Michael Luttig, who was shortlisted for a Supreme Court seat by the George W. Bush White House and who mentored many of the conservative legal elite as his law clerks, including Senator Ted Cruz. The Conference of Chief Justices, representing all 50 state supreme court justices from both parties, filed a brief squarely rejecting the notion that state courts and state constitutions cannot check state legislatures when they regulate federal elections.

Common Cause, along with partners Southern Coalition for Social Justice and DemocracyNC, will be leading the effort to alert voters to this threat to fair and free elections and will be calling for street demonstrations in both Washington and in Raleigh as December 7th approaches. Heed their call.

Find out how to help:

No comments: