Moore v. Harper: Voting Rights Case to see If Our Vote Counts and Counted Fairly

Likely deciding vote: Justice Amy Coney Barrett

(Annotated above)

This super yet damn scary article should grab every one’s attention – that is everyone concerned about our right to vote and to have our vote count in a free, fair, safe, and secure election is in this story from Law & Crime with this headline (and formatted to fit the blog):

“Election Law Experts Sound the Alarm about an Extremely Dangerous Voting Rights Case the Supreme Court Agreed to Hear”

The Supreme Court has agreed to hear a North Carolina gerrymandering case that could hand state legislatures the sole power on how to conduct elections, a proposition that led one voting rights scholar to warn it is “extremely dangerous.”

The case, Moore v. Harper, challenges a decision by the North Carolina Supreme Court invalidating the maps of the state’s GOP-dominated General Assembly for partisan gerrymandering.

Legislators, led by Rep. Tim Moore (R), argued that their branch of government has the power of conducting “Times, Places and Manner of holding elections” under the U.S. Constitution, a notion commonly known as the independent state legislature theory. 

The challengers’ case posits that this power trumps that of the courts to decide that their actions violate state constitutions or results in unfair maps.

That was a theory openly pushed by pro-Trump attorneys like John Eastman in seeking to overturn President Biden’s victories in key states like AZ, WI, MI, GA, and PA.

Eastman’s six-page plan to overturn Trump's defeat, sometimes described as the “coup memo,” started with that proposition and begins with this obvious statement: “Article II, § 1, cl. 2 of the U.S. Constitution assigns to the legislatures of the states the plenary power to determine the manner for choosing presidential electors.”

James A. Gardner, a professor and election law scholar at the University at Buffalo School of Law, told Law & Crime: “That proponents of the “independent state legislature theory go even further than that – vesting state legislatures with the exclusive power” also  noting: “It is thus an unchecked institution.”

Rep. Tim Moore is also the speaker of the NC House of Representatives and the lead plaintiff in the case and he has amplified Trump’s false election fraud claims.

For example: On November 12, Moore tweeted out photographs of his trip to PA for the so-called “ballot count oversight and elections integrity effort,” posing next to signs reading “STOP THE STEAL” and “Fraud Squad Welcome!”

In 2020, at least four justices on the Supreme Court’s right flank appeared to embrace the independent state legislature theory: Thomas, Alito, Gorsuch, and Kavanaugh, in a pair (in PA) of statements (in WI) on the emergency docket.

Rick Hasen, election law expert and professor at the University of California at Irvine, wrote in a blog post: “That the case could provide a path to election subversion,” and then he added: “This extreme position would essentially neuter the development of any laws protecting voters more broadly than the federal constitution based on voting rights provisions in state constitutions.”

Joshua Douglas, an election law professor at University of Kentucky, told Law & Crime: “That Moore v. Harper is an extremely dangerous case in that it could take away state constitutional limits on state legislatures when they enact restrictive voting rules.” 

Douglas then later wrote in an email: “Already, U.S. Supreme Court interpretation of the right to vote is unduly narrow. Advocates have rightly gone to state courts, seeking to use the broader protection of voting in state constitutions to protect voters. This doctrine would gut that state-level protection by saying that state legislatures are essentially free actors when enacting election rules for federal elections.”

Gardner, the University at Buffalo School of Law professor cited above, put it more bluntly telling Law & Crime: “It could mean that there are now four votes in support of the independent state legislature doctrine. More broadly, it is an opportunity for a court that has now openly abandoned its commitment to liberal democracy to improve the odds that the Republican Party, a minoritarian, illiberal, and authoritarian party, to seize power.”

Related story here from the voting issue experts at the Brennan Center for Justice at NYU.

My 2 Cents: As simple as I can say it with Chief Justice Roberts probably with the three liberal Justices is that Justice Amy Coney Barrett will be the deciding vote and we should hold our breath about her decision. She is a very wild card on this issue.

In a nutshell our right to vote in a free, fair, safe, and secure election will stand, but endorsing Moore would ensure that our vote is not likely to count. 

Such a ruling for Moore would ensure that the GOP Trump-run GOP never ever loses another election since certain states would control not only who votes but whether their vote counts or not.

So, hang on right – it could be very ugly.

Thanks for stopping by.