A North Carolina lawsuit at the US Supreme Court could undermine democracy as we know it, by allowing state legislators to override popular opinion in elections for Congress and possibly even the presidency, former US Attorney General Eric Holder told reporters.
“That potential result, I think, should keep every American up at night,” Holder said in a Q&A session last week.
The main focus is on gerrymandering. If North Carolina lawmakers win the case, states would have free rein to draw congressional district maps that artificially inflate the power of whichever political party controls the state legislature.
Many states, both blue and red, have done that for decades. But in recent years a growing number of state supreme courts — including North Carolina’s, earlier this year — have started cracking down on partisan gerrymandering.
This case seeks to put a stop to that, by asking the US Supreme Court to ban state courts from ruling on anything related to federal elections. In addition to gerrymandering, that could also affect issues like voter ID, felon voting rights or the rules for early voting, mail-in voting and more.
The Supreme Court has shot down similar arguments multiple times, in cases dating back over a century. However, earlier this summer the court’s most conservative justices agreed they should take another look at it. The court will likely hear the arguments later this year, and then issue a ruling next year, in time for the 2024 elections.
The case may go beyond gerrymandering, too.
Some are concerned the Supreme Court could hand so much unchecked power to state legislatures that they’d even be able to override their state’s popular vote in presidential elections — and hand their Electoral College votes to whoever the legislature wants to win, regardless of who the people voted for.
“The stakes are higher now than they were even three, four years ago, given the number of election deniers who are running for state legislative seats, secretaries of state, governors,” said Holder, a Democrat who led the US Department of Justice during Barack Obama’s presidency.
Legislative leaders, however, deny that they’d get the final say over who gets North Carolina’s votes in future presidential races, even if they do win this case.
The case, called Moore v. Harper, “is about who has the constitutional authority to draw federal election maps and has nothing to do with presidential electors,” said Lauren Horsch, a spokeswoman for NC Senate leader Phil Berger.
Overturning presidential elections?
In seven swing states that voted for Joe Biden in 2020, Republicans tried creating fake slates of electors that would have given their states’ votes to Donald Trump instead. All of those attempts failed, and some of those involved are now under investigation.
But in 2024 and beyond, Holder said, that strategy could become a real threat if the Supreme Court rules in favor of the North Carolina legislature in this case.
“State legislatures could, at least theoretically, decide which electors ultimately go to the Electoral College,” he said, adding: “On the basis of what they’ve said about the legitimacy of the 2020 election, you have to genuinely be concerned about what would these people do.”
The News & Observer has previously reported that experts disagree on this point. Some agree with Holder. Others say legislatures still could not directly override the popular vote and reassign their state’s electoral votes, but that legislatures might have an easier time conducting politically motivated audits that could undo legitimate results.
In addition to denying that North Carolina lawmakers are asking for this power from the Supreme Court, Horsch also criticized Democratic leaders for being hypocritical on the topic. If Holder is truly concerned about election deniers gaining power on the right, she said, he should talk to North Carolina Gov. Roy Cooper.
Cooper is president of the Democratic Governors Association, which this year made the controversial decision to spend millions of dollars backing far-right candidates in GOP primaries — under the assumption that they’ll be easier for Democrats to beat in a general election than more moderate Republicans.
“If Eric Holder is concerned about election deniers running for office, then I hope he uses his time in North Carolina to have a conversation with Gov. Cooper and the DGA about their recent decisions to fund candidates they claim are threats to democracy,” she said.
A local case, with national ramifications
While there are differing views on what the case might mean for presidential elections, no one disagrees that a ruling for North Carolina would give states more power to draw maps without state court oversight. The only disagreement there is whether it’s good or bad.
Republicans control most state legislatures nationwide. So a number of national GOP groups are formally supporting the North Carolina case by downplaying the concerns voiced by Democratic politicians, voting rights advocates, election law experts and others.
“Although the legal issues that (North Carolina lawmakers) raise are rather straightforward, you would not know it from the overblown lamentations spewing from some corners of the legal and political communities,” the Republican National Committee wrote in a Supreme Court brief.
Locally and nationally, however, advocates are trying to get even more attention on the lawsuit.
Bob Phillips, director of Common Cause North Carolina, said court oversight is important. He noted that every election here in the last decade was held using Republican-drawn maps that were later ruled unconstitutional, for either racial or partisan gerrymandering.
In a domino effect, those cases ultimately led to a ruling last month from the NC Supreme Court that when Republicans held a supermajority at the NC General Assembly, it was likely only due to racial gerrymandering. Therefore, the justices wrote in a 4-3 ruling, with every Republican justice dissenting, GOP lawmakers lacked the legitimacy to put constitutional amendments related to voter ID and income taxes on the ballot in 2018.
“We feel strongly that the state courts should not be taken out of the equation,” Phillips said in a media briefing this month.
His briefing, as well as Holder’s, focused mostly on turning the national media’s attention towards the North Carolina case. Reporters for outlets like CNN, NBC, CBS and Politico attended.
Kathay Feng, who leads Common Cause’s national redistricting efforts, said it’s not only Republican-led states that gerrymander their congressional maps. She pointed to New York and Maryland as examples of Democratic gerrymandering.
But aside from a notable brief to the court attacking North Carolina lawmakers’ arguments — from the group that represents the chief justices of every state and territory supreme court in the country — this case has, in large part, left Democrats and Republicans on opposite sides .
“The independent state legislative theory, as the North Carolina legislature would have it, would really just undermine our basic system of government, our tripartite system of checks and balances, the notion of separation of power and all the things that a lot of our fundamental democratic principles are founded upon,” said voting rights attorney Abha Khanna, a law partner of Democratic lawyer Marc Elias.
GOP lawmakers, however, say that they’re not the ones trying to blow up the separation of powers. Instead, they say they’re just trying to take back the powers the Founding Fathers intended them to have, but that the judicial branch has wrongfully seized over the years by becoming more involved in deciding election-related lawsuits.
“The ‘independent state legislature theory’ is a misnomer to scare voters into donating to these extreme partisan causes,” Horsch wrote. “Moore v. Harper is predicated on who has the constitutional authority to set election policy — seven state Supreme Court justices or 170 state legislators. The US 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.”
And even though the Supreme Court has shot down similar arguments in the past, Republican politicians say things are different now.
In one petition to the court, North Carolina lawmakers say it was “virtually unheard of until the modern era” that state supreme courts ever struck down maps for partisan gerrymandering, which is why the Supreme Court should rule differently now.
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