Moore vs Harper: This is the Most Misrepresented Supreme Court Case in Recent History

Moore vs Harper: Former appeals court judge J. Michael Luttig called Moore v. Harper, an exceptional lawsuit being heard by the Supreme Court in oral arguments Wednesday morning, “the most crucial issue for American democracy” in the nation’s history.

Conservative and highly regarded legal scholar Judge Luttig is not prone to hyperbole. However, most Americans aren’t following the case since it employs legal jargon and concepts that are unfamiliar to them. The fundamental foundation of the American system is at risk, and our democracy must be preserved by ensuring that enough judges grasp the legal flaws in this case.

Now, some history on the case: North Carolina’s legislature will redistrict the state’s congressional districts in 2021. At the time, people in the state were about split between the Democrats and the Republicans across its 13 districts.

However, the North Carolina legislature is currently controlled by Republicans who are not interested in drawing equitable districts. One of the worst examples of gerrymandering in the country, they drew the lines to give themselves an advantage in 10 seats.

No one in North Carolina’s judicial system was laughing. To the extent that Republicans could win legislative majorities even when Democrats earned more votes statewide, a panel of three trial judges concluded that the 2021 maps were “intentionally and methodically structured to maximise Republican advantage.”

Moore vs Harper
Moore vs Harper

The Supreme Court of North Carolina invalidated the maps because they were a threat to the rights to fair elections, free press, peaceful assembly, and equal protection guaranteed by the state’s constitution.

A state court’s decision to invalidate a state statute by invoking the state constitution should have been the final chapter. Despite a provision established by the North Carolina legislature permitting the courts to evaluate redistricting schemes like these, Republican leaders in the state appealed, contending that the U.S.

Constitution does not grant state courts authority to judge on their congressional maps. Instead, they’re banking on a hypothesis that hasn’t been tested yet: that state legislatures have virtually unlimited power to alter federal election rules whenever they see fit.

The autonomous state legislative theory has been bandied around conservative legal circles since it was first offered by then-chief justice William H. Rehnquist in his concurring opinion on Bush v. Gore in 2000.

This is a naked attempt to seize political power and disguise it as a legal doctrine. Using the conservative supermajority on the Supreme Court, Republicans are attempting to make the state legislatures (of which they control 30) into unaccountable election bosses. There is no foundation for this theory in either the law or historical practice.

The division of powers is a cornerstone of the American system of government, yet the concept that state legislators live free of any restraints imposed by their constitution and state courts is laughable.

The North Carolina legislature has, in theory, unlimited authority to manipulate federal elections by gerrymandering and other means, at least according to its own reasoning. It is an unconstitutional area over which neither the government nor the courts nor the people through initiative petitions have any control.

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On Wednesday morning, Justice Elena Kagan flatly rejected the argument, saying that it “gets rid of the normal checks and balances on the way significant governmental decisions are made in this nation.” Also, it seems to eliminate the checks and balances just when they are essential.

The petitioners’ proposed legal approach would render hundreds of state constitutional provisions meaningless in federal elections. For instance, in 48 of the 50 states, the right to vote is expressly guaranteed by the constitution. (It still isn’t reflected in the federal constitution.) Elections are typically guaranteed to be open, fair, and equal by state constitutions.

Even the secret ballot, a pillar of American democracy, was created by individual state constitutions. The theory states that state constitutions have no jurisdiction to impose any limits on federal elections, therefore if the Supreme Court accepts even a lesser version of the independent state legislature doctrine, as the petitioners want them to, provisions like these might become unlawful overnight.

Challenges to state legislative activities may still be filed before federal courts (the Constitution and federal law remain preeminent). To hear some of the justices tell it, they just cannot or do not care about the practical implications of their decisions. That’s merely their interpretation of the law. This matter should be dismissed on its merits, according to your reasoning.

To begin with, the theory is founded on an incorrect reading of the law. The Constitution specifically grants election lawmaking authority to a “legislature.” Proponents of this argument argue that state legislators have virtually unchecked authority in this area because of just one word.

However, as Judge Luttig has pointed out, there is “simply no foundation” for the argument in the Constitution. In fact, the authors of the Constitution were worried that state legislatures had too much rather than too little authority.

While the authors frequently cite the authority of state legislatures and the federal government, their work never explicitly or implicitly claims to be beyond the reach of the courts.

Second, it has a poor historical foundation. Supporters base their argument on a document that is almost 200 years old and is widely accepted to be fake. It was purportedly written in 1818 by founding father Charles Pinckney of South Carolina to be a carbon copy of the blueprint for the government he presented at the Constitutional Convention 30 years earlier.

What he handed in back in 1818, however, was not the genuine article. This was an instant suspicion of James Madison’s, and it has been shared by virtually all historians who have looked into the matter subsequently.

Justice Sonia Sotomayor said, “Yes.,” in response to the theory’s proponents’ attempt to argue that early state legislature procedures demonstrated that their side should prevail. It’s simple to alter the course of events.

Third, this idea will cause a logistical headache for states all around the country if the Supreme Court decides to adopt it. It’s because state courts undoubtedly play a role in state elections, but the theory only applies to federal elections.

This would lead to an incongruous situation in which separate regulations applied to federal and state elections. It would be complete anarchy and disorder. Most importantly, this theory has been repeatedly and tacitly rejected by the Supreme Court. For decades, the Supreme Court has made plain that state courts can limit what Congress can do in federal elections through precedents.

The court has repeatedly ignored requests to intervene in the extreme partisan gerrymandering taking place in states like North Carolina and others, most recently in 2019. Chief Justice John Roberts made it clear that state courts should play this role in a recent opinion. State courts “may apply criteria and guidance provided by provisions in state legislation and state constitutions,” he said.

Justice Samuel Alito appeared to disagree with that premise throughout Wednesday’s debate. He implied that judges on state courts, such as those in North Carolina, who are elected by the people, are also involved in politics.

Justice Alito, who has delivered openly partisan speeches to outside groups and voted regularly in alignment with Republican policy aims, remarked, “There’s been a lot of concern about the impact of this judgement on democracy.”

When asked, “Do you think it furthers democracy to transfer the political argument about districting from the legislature to elected supreme courts where the candidates are entitled by state law to campaign on the issue of districting?”

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One may see the ludicrousness of the thesis by analysing the people who have spoken out for and against it. For one, it has been rejected by a sizable and cross-ideological group of judges, government officials, former parliamentarians, prominent historians, and constitutional academics.

These include a Republican former governor and secretaries of state, as well as civil rights organisations and a co-founder of the conservative legal group the Federalist Society. On the other side, you’ll find a much more limited and partisan cast of characters.

Including the Republican National Committee, a coalition of Republican state attorneys general, and John Eastman, a disgraced law professor who was last seen assisting Donald Trump in plotting an illegal and unconstitutional coup to remain in office (an act that has exposed Mr Eastman to a real risk of criminal prosecution).

The fact that many judges actually believe this theory is terrible enough. In an earlier stage of the case, three of them, Justices Alito, Neil Gorsuch, and Clarence Thomas hinted that they favoured the autonomous state legislature theory.

Supreme Court Justice Brett Kavanaugh has also expressed receptivity. Especially when, as this board has observed, the public’s trust in and approval of the court has plummeted to historic lows because of the court’s aggressively political recent rulings.

Only the most contentious cases, the old adage goes, get consideration by the Supreme Court. They would have been settled in the district courts if they weren’t so close. Moore v. Harper, on the other hand, isn’t even a close case.

An affirmative decision in favour of the North Carolina legislators would overwhelm federal courts with election litigation that typically takes place at the state level, upsetting the delicate balance of federalism that characterises the American government. That’s not a moderate conclusion; it’s a radical one.

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