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North Carolina’s closely-watched election is underway before the U.S. Supreme Court and it could upend the 2024 presidential race.
“Conservative Supreme Court justices appeared skeptical Wednesday about a state court’s decision to strike down Republican-drawn congressional districts in North Carolina, but it seemed unlikely a majority would embrace a broad theory that could upend election law nationwide. The appeal brought by North Carolina Republicans asks the court, which has a 6-3 conservative majority, to embrace a hitherto obscure legal argument called the “independent state legislature” theory, which could strip state courts of the power to strike down certain election laws enacted by state legislatures,” the New Yorker reported.
The independent state legislature argument hinges on language in the Constitution that says election rules ‘shall be prescribed in each state by the legislature thereof.’ Supporters of the theory, which has never been endorsed by the Supreme Court, say the language supports the notion that, when it comes to federal election rules, legislatures have ultimate power under state law, potentially irrespective of potential constraints imposed by state constitutions,” the outlet added.
“Backed by Republican leaders at the N.C. General Assembly, the crux of the argument is that they and all other state legislators should have much broader power to write election laws, with courts mostly not allowed to stop them by ruling their actions unconstitutional. They’ve been tight-lipped about the case since filing it this spring, mostly preferring to avoid commenting on it to reporters and instead doing their talking through legal briefs,” the Herald-Sun reported.
“Beyond redistricting the case also has the potential to change how North Carolina and the 49 other states handle everything from early voting and mail-in ballots rules to voter ID, recounts, post-election audits, and anything else that could possibly affect an election,” the outlet added.
The Herald-Sun reported:
In recent years under Republican leadership at the General Assembly — and a Democratic majority at the N.C. Supreme Court — a number of political lawsuits have led to state-level cases with huge implications for how elections are conducted.
Those include gerrymandering cases decided in 2019 and 2022 as well as lawsuits over lawmakers’ ability to amend the constitution to require voter ID and a ban on ex-felons voting after they leave prison — all of which have ended in rulings against the legislature. More cases are pending, including another one over voter ID and one advancing a state-level version of the same legal theory that’s about to be heard at the U.S. Supreme Court.
“Moore v. Harper is predicated on who has the constitutional authority to set election policy – seven state Supreme Court justices or 170 state legislators,” Lauren Horsch, a spokeswoman for Berger, said in an email. “The U.S. Constitution’s Elections Clause is clear that it’s the state legislatures, but recently state courts have taken it upon themselves to set election policy. In North Carolina, we have a state Supreme Court that has become a legislative body.”
Democrats are out in full force pushing their usual talking points by claiming it could “end democracy.”
Kathay Feng, who leads the anti-gerrymandering group Common Cause, called it “the case of the century.”
“It is a case that asserts a bizarre and fabricated reading of the United States Constitution … to create a situation where elections are already rigged from the start,” she said.
Eric Holder, a Democrat and former U.S. attorney general under Barack Obama, said it “should keep every American up at night.”
Michael Luttig, a Republican and retired federal judge who George W. Bush considered nominating to the Supreme Court, recently called it “the single most important case on American democracy” of the last 250 years.
A ruling could come in early 2023 and Democrats are clearly worried about it.
“Some argue it could allow state legislators to overturn future presidential elections. Others say it could create a convoluted system of election rules that would end in people being disenfranchised, as elections split into two systems — one for federal races and another for state races — unlike the system we have now, where all the races are on one ballot with one set of rules,” the report stated.
