How an 'alarming' Supreme Court case could ‘fundamentally reshape American democracy’: NC governor

07 December 2022

When Democratic Rep. Tim Ryan lost Ohio’s 2022 U.S. Senate race to MAGA Republican J.D. Vance, he stressed that it was a “privilege” to offer Vance a concession speech. Ryan’s point was that he was thankful to be living in a liberal democracy that has a system of robust checks and balances, and that if the voters of Ohio preferred to elect a Republican to the Senate, that was ultimately their decision, not his.

But Ryan’s concession speech also alluded to the fact that some MAGA Republicans are refusing to accept defeat when they lose. A variety of Americans, from liberals and progressives to arch-conservative Rep. Liz Cheney of Wyoming, have been warning that democracy is under attack from the MAGA far right in the United States. And one Supreme Court case that has them worried is Moore v. Harper, which deals with partisan gerrymandering in North Carolina but also addresses a far-right legal idea known as the independent state legislature (ISL) theory.

In its most extreme or severe form, the ISL argues that only state legislatures have the right to govern the administration of elections at the state level — not governors, not state supreme courts, not judges. That version of the ISL totally excludes a state’s executive or judicial branch from the equation. And one of the Democratic governors who is speaking out against the ISL is North Carolina’s Roy Cooper.

In an op-ed/essay published by the New York Times on December 5, Cooper lays out some reasons why the outcome of Moore v. Harper — depending on how the High Court rules — could be disastrous for U.S. democracy.

“Moore v. Harper is a case from North Carolina that state and national Republicans are using to push an extreme legal premise known as the independent state legislature theory,” explains Cooper, who served as North Carolina attorney general for 16 years before being sworn in as governor in January 2017. “While the United States Constitution delegates the authority to administer federal elections to the states, with Congress able to supersede those state decisions, proponents of this theory argue that state legislatures are vested with the exclusive power to run those elections. This view would leave no room for oversight by state courts and put the ability of governors to veto election-related legislation in doubt.”

The North Carolina governor continues, “The Court’s decision on this alarming argument could fundamentally reshape American democracy. Four justices have suggested that they are sympathetic to the theory. If the Court endorses this doctrine, it would give state legislatures sole power over voting laws, congressional redistricting and potentially even the selection of presidential electors and the proper certification of election winners.”

North Carolina, according to Cooper, underscores “the potential for dire consequences” if the High Court, in Moore v. Harper, accepts the ISL as valid.

“In 2010, Republicans took over the state legislature after the midterm elections,” Cooper notes. “Since then, North Carolina has been Ground Zero for Republican attempts to manipulate elections. As the state’s attorney general and now governor since 2017, I’ve dealt with Republican legislative leaders as they advanced one scheme after another to manipulate elections while making it harder for populations they have targeted to vote…. Fortunately, these measures were stopped in 2016 by the U.S. Court of Appeals for the Fourth Circuit, which described them as targeting African-Americans ‘with almost surgical precision’…. North Carolinians have relied on courts and my veto power as governor to foil many of these schemes.”

Cooper warns that removing a state’s executive and judicial branches from governing elections would be a major blow to U.S. democracy and its system of “checks and balances.”

“Our democracy is a fragile ecosystem that requires checks and balances to survive,” Cooper writes. “Giving state legislatures unfettered control over federal elections is not only a bad idea, but also, a blatant misreading of the Constitution. Don’t let the past decade of North Carolina voting law battles become a glimpse into the nation’s future.”

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