06 July 22
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The decision to hear Moore v. Harper could lead to an erosion of voting rights and an increasing likelihood of election interference. At issue is a North Carolina Supreme Court case holding that the state’s constitution precludes severe partisan gerrymanders; the argument the petitioners make is that state courts shouldn’t have any role in overruling federal election rules put into place by state legislatures. This so-called independent state legislature theory has found little sympathy from scholars but appears to have garnered more affection from the current slate of conservative justices — four of whom have suggested they are at least willing to entertain the idea. The consequences of such a ruling would be tremendous.
The Republican-appointed Supreme Court majority would complete a nasty bait-and-switch by neutering state courts when it comes to elections: Chief Justice John G. Roberts Jr. wrote in a 5-to-4 decision three years ago that federal courts could do nothing to prevent the same sort of extreme gerrymander. But never fear, he insisted, state courts could step in to protect citizens’ rights. Now, it seems, he and his colleagues on the right, with Justice Amy Coney Barrett a possible swing vote, are poised to go back on that promise. This would mean that state legislatures — their own makeup the result of heavy gerrymandering — could contort congressional districts at will to ensure one party has the advantage, playing with how much every individual’s vote really counts. Other harms abound.
Should the Supreme Court buy into this radical doctrine, governors and other state and local officials responsible for running elections might also end up with their hands tied. That could lead to chaos if legislatures set burdensome rules for voting in federal contests that conflict with less restrictive rules for state contests. It could also create manifold opportunities for mischief of the sort then-President Donald Trump and his allies attempted in 2020: Legislatures might remain restrained from deciding to ignore the popular vote and appoint their own slates of electors after the fact of a lost presidential race, but they could plausibly pass laws ahead of time establishing a process that allows them to do just that.
The reforms to the Electoral Count Act under negotiation on Capitol Hill could go some of the way toward mitigating the danger, and lawmakers should pursue those changes — but any law’s impact will be limited, and this development also risks snarling talks. Our democracy’s path rests mostly with the Supreme Court. If five justices overturn the North Carolina decision, they will know what they are doing, which is writing a recipe for election tampering. They will also know why they are doing it: not because the Constitution demands it, but because they can.
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