OPINION: This article may contain commentary which reflects the author's opinion.
North Carolina’s closely-watched election case is underway before the U.S. Supreme Court and it could upend the 2024 presidential race. The case, Moore v. Harper, is being pursued by Republicans in the North Carolina General Assembly. They argue the North Carolina State Supreme Court’s Democrat majority “violated the state constitution’s elections clause by rejecting congressional districts enacted by the legislature and eventually imposing court-drawn districts on the people of North Carolina.”
The case will pursue a legal theory called “independent state legislature doctrine,” which suggests that, under the Constitution’s election clause, “only the legislature has the power to regulate federal elections, without interference from state courts,” the Carolina Journal reported.
“The Supreme Court seems unlikely to adopt the most muscular version of the theory. But depending on where the justices land, it could reopen the redistricting process both in the Tarheel State and elsewhere where state courts waded into the mapmaking process. The 2022 elections in a handful of states will also likely have an impact on congressional lines in 2023. Republican-aligned justices won a majority on the North Carolina state Supreme Court — making the court much more likely in the future to back the party’s legislatively drawn lines,” the report added.
Carrie Campbell Severino, the head of the conservative-leaning Judicial Crisis Network, published a detailed report for National Review hitting back at Democrats claiming the ruling could “end democracy” and destroy future elections in America.
The reason the Court has taken this case is straightforward even though—perhaps because—the issue is a novelty. The North Carolina Supreme Court’s decision, by a divided court falling along partisan lines, represents a usurpation of the legislative authority that is not to be found in state supreme court decisions for most of American history until recently. And the loudest protests of the prospect of the U.S. Supreme Court overriding this state judicial activism come from the Left’s well financed litigation operation that drove this recent trend.
As part of this trend, ideologues on the Left treated state courts as a way to override the normal instruments of democratic governance when they could not attain their policy preferences—as they repeatedly could not—in state legislatures and in Congress. They sought a variety of election law changes, from disregarding statutory deadlines to throwing out district maps—that is, when those maps seemed to disadvantage Democrats. They were fine with states that favored Democrats at the expense of Republicans. They asked state courts to rewrite election laws to get their way.
A win for the North Carolina legislators in Moore would be a loss for the fringe legal theories running amok in Mark Elias’ orbit. And that could go a long way toward preventing his litigation machine from wreaking further havoc regarding state election laws across the country. That would be a good thing for democracy.
Democrats are out in full force pushing their usual talking points.
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.