You thought overturning Roe caused an uproar? Two upcoming U.S. Supreme Court cases revolve around how elections are won.
One case could eventually turn Alabama from red to purple. The Brennan Center for Justice says the other case, spawned in North Carolina, could destroy democracy — and help put ex-president Donald Trump back in the White House, even if he loses the popular and electoral votes.
MOORE V HARPER
In the last week of August, the nonpartisan League of Women Voters urgently denounced the strange “fringe” legal theory at the heart of this case, which the Supreme Court at first declined to hear, as a threat to democracy.
And legal scholars say at its most extreme interpretation, it provides a mechanism that allows state legislatures to ignore the votes cast by their citizens and hand the election to the loser.
"Adoption of the theory by the US Supreme Court would be a threat to our democratic values and institutions,” the League statement reads. “It would reinstate congressional maps that the North Carolina Supreme court struck down as an extreme partisan gerrymander, and those illegal maps would be in use for the future. This would have a devastating effect on voters and those seeking to defend and protect the right to vote.”
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The U.S. Supreme Court declined to hear this North Carolina case in February, perhaps because it hinges on a controversial legal theory. But, four justices disagreed with their colleagues back in February — Samuel Alito, Clarence Thomas, Brett Kavanaugh, Neil Gorsuch — expressing strong interest in exploring and engaging with the “independent state legislature theory.”
The Brennan Center calls the independent state legislature theory “the debunked independent state legislature theory.” If the Supreme Court decides it is valid, it can change the way elections are run and votes are counted.
Elliot Mincberg, People for the American Way senior fellow, is a Supreme Court scholar who also served as chief counsel for oversight and investigations of the House Judiciary Committee.
“This scares me because it isn’t just about redistricting; it has much broader implications,” Mincberg told Raw Story. “The GOP dominates the North Carolina state legislature. It dominates a lot of state legislatures. This theory gives state legislatures enormous power to do what they want in state elections and national elections.”
If SCOTUS supports the most extreme version of the theory, Mincberg says that would remove constraints placed on state legislatures regarding how they intervene and interfere with elections — including presidential elections. In states where election deniers hold positions of power, it could mean that most voters cast their ballots for a Trump opponent, but the legislature could still declare Trump the winner.
The Brennan Center reported that last year “North Carolina’s Republican-dominated state legislature passed, on a party-line vote, an extreme partisan gerrymander to lock in a supermajority of the state’s 14 congressional seats. The gerrymander was so extreme that an evenly divided popular vote would have awarded ten of 14 seats to Republicans and only four to the Democrats.”
This February, the North Carolina Supreme Court ruled that the map was an “egregious and intentional partisan gerrymander” that violated the state’s constitution.
According to Ballotpedia, on March 17, Speaker of the North Carolina House of Representatives Timothy K. Moore (R) filed a petition for a writ of certiorari in the case. SCOTUS granted the review on June 30.
The North Carolina Republican Party did not respond to calls or emails asking for interviews or comments.
North Carolina Democratic Party Chair Bobbie Richardson emailed Raw Story these comments: “For decades, North Carolina Republicans have been splitting city streets and rural neighborhoods down the middle to dilute the democratic process and disenfranchise voters, disproportionately impacting communities of color. Moore v. Harper is another brazen attempt to erode voting rights and empower election deniers to override the will of the voters for their own political gain. Republicans have made clear that winning elections is more important to them than their commitment to constitutional values. That is not true democracy.”
Courts have repeatedly rejected the theory. The Supreme Court may reject it, too. But if it embraces the theory, Mincberg warns that there will be no way to find the sort of “Constitutional get-around” that some Americans cobbled together after Roe was overturned.
“We won’t be a democracy,” Mincberg said flatly. “We’ll be living under something else, maybe a plutocracy or an autocracy.”
MERRILL V MILLIGAN
Blood red, reliably Republican Alabama achieved an epic landmark and almost no one has noticed. This year, there are Black Democratic candidates for Senator (Rev. Will Boyd), Governor (Yolanda Flowers) and Attorney General (Wendell Major) for the first time in history.
NAACP-Alabama State Conference president and 23-year Air Force veteran Benard Simelton told Raw Story that it took a lot of knocking on doors street after street under broiling Alabama sunshine to register voters and convince them to vote. But when he saw the state’s redistricting map that Republicans approved, he was convinced all those votes would be hopelessly diluted.
“It’s very frustrating; it’s a method of voter suppression that we call packing and cracking,” he said in a phone interview, explaining that the map is “packing” Black voters into only the one 7th Congressional District and “cracking” or splintering Black residents among three other districts.
Given Black population growth and geographical expansion, the map Simelton and many other Black voters argue for would create two predominantly Black, adjacent districts. So, a group of Black voters —including lawsuit namesake Evan Milligan, the Greater Birmingham Ministries, and the Alabama NAACP — began a long series of legal battles in state courts arguing that the current map violates Section 2 of the Voting Rights Act and the 14th Amendment.
On October 4, they meet the Supreme Court. Their lawyers will argue that due to population growth and shifts, there should be two predominantly Black adjacent voting districts on the map, not just one.
“We’re on pins and needles but we’ve got a strong case built on facts so now we’re hoping that all the justices will listen carefully to it,” Simelton said.
Meanwhile, Simelton is busy registering college students on campuses across the state.
“The students’ response has been great,” Simelton told Raw Story. But Trump supporters aren’t happy with the outreach, arguing that the students should travel back home and register to vote where their parents live.
Now that pandemic restrictions have been lifted, he observes that students live on campus nine months of the year and some can’t afford to travel back to their families to register and vote.
“Campus is their home and where they should be voting,’ he said.
Simelton has heard from colleagues in North Carolina that college kids there are confronting similar arguments when they flock to voter registrations near their universities. The Gen Zers who are now registering to vote are different because they do more than fill out cards. They put on name tags and hit the streets recruiting voters.
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