Here we go again. The End of Democracy. You know, like when the Supreme Court ruled that abortion rights should be determined through the state electoral process, not by federal courts. And when it declared that the EPA could exercise powers over major issues only if the duly-elected Congress clearly enabled such action in legislation. Such a threat!
Here we go again. The politicians and media that brought you those End of Democracy narratives, and the Russia Collusion hoax, have a new demon to spend the next several months foaming about: Moore v. Harper, which the Supreme Court recently agreed to hear next term.
Sounds sooooooo scary. Ian Millheiser at Vox writes, A new Supreme Court case is the biggest threat to US democracy since January 6
The Supreme Court’s announcement on Thursday that it will hear Moore v. Harper, a case that could concentrate an unprecedented amount of power in gerrymandered state legislatures, should alarm anyone who cares about democracy.The case is perhaps the gravest threat to American democracy since the January 6 attack.
An Op-ed in WaPo is equally dramatic, A new Supreme Court case threatens another body blow to our democracy
So what’s all this fear mongering about? Here’s how the Emergency Application for a Stay, filed by Republicans in February 2022, framed it:
The federal constitution expressly provides that the manner of federal elections shall “be prescribed in each State by the Legislature thereof.” U.S. CONST. art. I, § 4. Yet barring this Court’s immediate intervention, elections during the 2022 election cycle for the U.S. House of Representatives in North Carolina will be conducted in a manner prescribed not by the State’s General Assembly but rather by its courts. “The Constitution provides that state legislatures”—not “state judges”—“bear primary responsibility for setting election rules,” Democratic Nat’l Comm. v. Wisconsin State Legislature, 141 S. Ct. 28, 29 (2020) (Gorsuch, J., concurring in denial of application to vacate stay), and this Court should intervene to protect the Constitution’s allocation of power over this matter of fundamental importance to our democratic system of government.In an order entered on February 4, the North Carolina Supreme Court invalidated the North Carolina General Assembly’s congressional maps and remanded to state trial court for remedial proceedings. Rather than seek immediate review in this Court, Applicants engaged in a good-faith effort to craft a congressional map that would be valid under the state Supreme Court’s order. Yet in an order entered on February 23, the North Carolina trial court rejected that map and instead mandated the use of a new map that had been created by a group of Special Masters and their team of assistants—who, to make matters worse, designed their own, judicially-crafted map after engaging in ex parte communications with experts for the plaintiffs. Applicants immediately sought a stay from the North Carolina Supreme Court, but that stay was promptly denied.If a redistricting process more violative of the U.S. Constitution exists, it is hard to imagine it. Without this Court’s emergency intervention, the North Carolina courts’ unconstitutional, judicially created congressional maps will be used to conduct the May 17, 2022 primary election….
In March 2002, the Court denied an emergency stay over the dissent of three Justices:
Application (21A455) denied by the Court. Justice Kavanaugh concurring in the denial of the application for stay. (Detached opinion). Justice Alito, with whom Justice Thomas and Justice Gorsuch join, dissenting from the denial of the application for stay. (Detached opinion).
Justice Alito, joined by Thomas and Gorsuch, would have granted a stay. Justice Alito’s opinion explained the importance of the issue, and citing to numerous cases arising out of the 2020 election in which the Court declined to resolve it:
I would grant the application for a stay.This case presents an exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections. There can be no doubt that this question is of great national importance. But we have not yet found an opportune occasion to address the issue. See, e.g., Democratic National Committee v. Wisconsin State Legislature, 592 U. S. ___ (2020); Scarnati v. Boockvar, 592 U. S. ___ (2020); Moore v. Circosta, 592 U. S. ___ (2020); Wise v. Circosta, 592 U. S. ___ (2020); Bush v. Gore, 531 U. S. 98, 112 (2000) (Rehnquist, C. J., concurring); see also Republican Party of Pennsylvania v. Degraffenreid, 592 U. S. ___ (2021) (THOMAS, J., dissenting from denial of certiorari); id., at ___ (ALITO, J., dissenting from denial of certiorari); Wisconsin State Legislature, 592 U. S., at ___ (GORSUCH, J., concurring). We will have to resolve this question sooner or later, and the sooner we do so, the better. This case presented a good opportunity to consider the issue, but unfortunately the Court has again found the occasion inopportune.In my view, the applicants have shown that the question presented by this case easily satisfies our usual criteria for certiorari, see this Court’s Rule 10, and it is also likely that they would prevail on the merits if review were granted. The Elections Clause provides that rules governing the “Times, Places and Manner of holding Elections for Senators and Representatives” must be “prescribed in each State by the Legislature thereof.” Art. I, §4, cl. 1 (emphasis added). This Clause could have said that these rules are to be prescribed “by each State,” which would have left it up to each State to decide which branch, component, or officer of the state government should exercise that power, as States are generally free to allocate state power as they choose. But that is not what the Elections Clause says. Its language specifies a particular organ of a state government, and we must take that language seriously….Both sides advance serious arguments, but based on the briefing we have received, my judgment is that the applicants’ argument is stronger. The question presented is one of federal not state law because the state legislature, in promulgating rules for congressional elections, acts pursuant to a constitutional mandate under the Elections Clause. Cf. Bush, 531 U. S., at 113 (Rehnquist, C. J., concurring) (compliance with the Electors Clause “presents a federal constitutional question”). And if the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections. I think it is likely that the applicants would succeed in showing that the North Carolina Supreme Court exceeded those limits.
Justice Kavanaugh felt the case needed to be considered on a regular schedule, not on an emergency basis:
I agree with JUSTICE ALITO that the underlying Elections Clause question raised in the emergency application is important, and that both sides have advanced serious arguments on the merits. The issue is almost certain to keep arising until the Court definitively resolves it. Therefore, if the Court receives petitions for certiorari raising the issue, I believe that the Court should grant certiorari in an appropriate case—either in this case from North Carolina or in a similar case from another State. If the Court does so, the Court can carefully consider and decide the issue next Term after full briefing and oral argument.
A Petition for a Writ of Certiorari, asking the court to hear the case, was filed in due course. On June 30, 2022, the Court granted the Petition, and agreed to hear the case, with the following Question Presented:
Whether a State’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof,” U.S. CONST. art. I, § 4, cl. 1, and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.
So that’s what all the fear mongering is about. The fear is the the Supreme Court may interpret the Elections Clause according to its plain terms.
Steve Bennen on the Maddow blog MSNBC website explains the Democrat political fear:
Rick Hasen, a professor and an election law expert at the University of California at Irvine, told NBC News that a Republican victory in this case “would radically alter the power of state courts to rein in state legislatures that violate voting rights in federal elections. It could essentially neuter the ability of state courts to protect voters under provisions of state constitutions against infringement of their rights.”
A Politico report added, “With 30 state legislatures currently in Republican hands, GOP state legislative leaders would be strongly positioned to skew maps in their party’s favor and to make changes Republican have sought to voting procedures.”
A HuffPost analysis went further. “Siding with the North Carolina Republicans could effectively give all electoral authority to state legislatures, including in the approval of the winner of the state’s Electoral College electors,” Paul Blumenthal argued.
There can be no doubt that the Supreme Court’s just completed term made clear just how far the institution has swung to the right, but that doesn’t mean the Republican-appointed justices won’t go even further.
I don’t think the case presents the issue as dramatically as these commenters say. The issue is whether state courts could invalidate political gerrymandering in the absence of any legislation or clear state constitutional provisions setting forth guidelines. In NY State, you will recall, the state courts rejected partisan gerrymandering because it was prohibited by state law, not because the judges felt is was unfair in some general sense.
While the Moore case involves gerrymandering of congressional districts, it would have implications for presidential elections, where Republicans complained in 2020 that judges in key states like Pennsylvania overturned and rewrote voting laws to facilitate Democrat get-out-the-vote efforts. That’s what Democrats are really afraid of, that their judicial ace in the hole for presidential elections may be removed.
How will the Court rule? No leak needed. Read the Alito Dissent on the stay motion. That reads like a strong candidate for a majority opinion.
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