There was a time not so long ago when North Carolina’s top judicial races, while still certainly containing a stiff shot of politics, were more genteel. For a while there were no party labels appearing on the ballot, and for a while there was a degree of public funding.
Those days are gone. The state Supreme Court is composed of six associate justices and one chief justice, with Democrats holding a 4-3 edge. Two of those Democrats, both associate justices, are up for election, so only one has to be picked off to give the GOP a majority.
If you haven’t heard about these races, you will. Outside money in the tens of millions of dollars is expected to flood into the state, meaning no airwave, mailbox or social media channel is going to be safe.
There’s a lot at stake, as the Supreme Court is the final arbiter in many matters of justice in North Carolina.
But in the background, there’s a legal case that has surfaced in North Carolina that has the potential to defang the state’s courts in some very fundamental ways.
Welcome to Moore v. Harper.
To back up: Many voters likely noticed the election was a bit of a mess this year, with filing deadlines and election dates jumping around, and state legislative and U.S. congressional maps in a state of uncertainty.
Much of the latter can be traced to a map passed in a party-line vote by the state’s GOP-dominated legislature that would have given Republicans 10 of the state’s 14 congressional seats, despite an essentially even political balance in North Carolina.
In the past legal action against extreme gerrymandering would have been taken to the U.S. Supreme Court, but that body has ruled federal courts can’t hear such cases. So the maps were challenged in state court, and the N.C. Supreme Court struck them down. A second gerrymandered map was passed, and a state court ordered a special master to draw fair maps for 2022.
Two state GOP legislators (House Speaker Tim Moore being one) asked the U.S. Supreme Court to reinstate the gerrymandered map under a legal theory known as the “independent state legislative theory,’’ which holds that the U.S. Constitution’s Election Clause gives state legislators the power – virtually exclusive power – to regulate federal elections.
The federal court didn’t reinstate the maps, but it did agree to hear the broader argument in its upcoming term.
Opponents of the state legislative theory fear that, should the U.S. Supreme Court accept the base argument being put forward, state legislatures would have the power to run free of the traditional checks and balances – no state court or governor’s veto, or conceivably any wording in a state constitution could stop partisan gerrymandering or conceivably other mischief.
If the court endorses the doctrine, the question is how far will it go?
The most extreme interpretation of the independent state legislature theory was dear to the heart of Trump lawyer John Eastman, who advocated for Georgia legislators to replace Biden electors with Trump electors.
As federal law frowns on state legislatures overturning election results, it’s doubtful anything like that could happen.
But should the Supremes put any validity to the theory, it could usher in an era of chaos where elections, voting procedures and who knows what else are challenged up and down the legal ladder, eroding trust in the process.
In an opinion piece published in the Washington Post, three legal experts wrote, “The theory would disable state courts from protecting voting rights in federal elections by eliminating state constitutional protections in those elections. And it would do so at a time when voting rights are under attack, including at the Supreme Court itself.”
Our government was set up with a system of checks and balances, with courts, legislative bodies and executives expected to take their turn at putting things back in balance when one branch exercised a power grab.
In the case of the independent state legislature theory, that raises a question:
What if they couldn’t?
That would be a good question to ask state Supreme Court candidates.
Not to mention General Assembly candidates.
This commentary was first published in the Sylva Herald.