“turns on the Moore petitioners’ inability to understand a dictionary”
There is an, um, minor runoff election in Georgia today. I’ll look at that tomorrow once (fingers crossed) results are known. Meantime, there is a potentially more consequential case going before the Roberts Supreme Court tomorrow (Wednesday) at 10 a.m. ET.
Moore v. Harper out of (where else) North Carolina arises because the state Supreme Court overturned yet another gerrymandered congressional map drawn by the GOP-controlled legislature. The surgically precise gerrymanders Republicans drew after the 2010 census faced court-ordered revision after court-ordered revision as Democrats and voting rights groups challenged the GOP in federal and state court over the last decade. Only in the final election cycle (2020) did the state have something closer to fairness.
The John Roberts Supreme Court dodged ruling that partisan gerrymandering is unconstitutional (Rucho v. Common Cause, 2019) and threw that matter back to the states. A three-judge panel in Superior Court in Raleigh subsequently ruled that it was forbidden under the state constitution.
But the GOP’s rigged maps survived most of the decade, so Wheee!!, why not have another go after the 2020 census, thought Republicans. Their 2021 gerrymanders went right back to court and, after legislators’ Trump-style strategic delays, the court ordered maps redrawn by a special master (for 2022 only). The result? Seven Republicans and seven Democrats will be seated in Congress in January and the GOP will be back at its map-rigging.
Will no one rid us of these troublesome courts? thought N.C. Republicans led by House Speaker Tim Moore. So they come to SCOTUS tomorrow bringing a truly inspired constitutional argument.
“The opening brief in Moore v. Harper, an extraordinarily high-stakes election case that the Supreme Court will hear December 7, is one of the least persuasive documents that I’ve ever read in any context. And I’ve read both Ayn Rand’s Atlas Shrugged, and Donald Trump’s Art of the Deal,” Ian Milhiser at begins at Vox:
The case involves the awkwardly named “independent state legislature doctrine” (ISLD), a theory that the Supreme Court rejected many times over the course of more than a century. It’s also a theory repudiated by many of the very same sources that the ISLD proponents rely upon in their briefs to the justices.
Under the strongest form of this doctrine, members of each state’s legislative branch have unchecked authority to decide how elections for Congress and the presidency will be conducted in their state — indeed, a state legislature could potentially pass a law canceling the presidential election in that state and awarding its electoral votes to Donald Trump. Any state constitutional provisions that protect the right to vote, that limit gerrymandering, or that otherwise constrain lawmakers’ ability to skew elections would cease to function. State governors would lose their ability to veto laws impacting federal elections. And state courts would lose their authority to strike down these laws.
“This entire case turns on the Moore petitioners’ inability to understand a dictionary,” Milhiser writes. I leave you to read his explanation.
Conservative legal elites including former federal judge J. Michael Luttig and Federalist Society founder and co-chair Steven Calabresi oppose the theory. Moore petitioners “flout core tenets of the American Founding,” Calabresi warns.
Democracy Docket spells out what’s at stake:
If the ISL theory is validated by the Supreme Court, state lawmakers would have remarkable power to set federal election rules without oversight from state courts or state constitutions. State courts could lose the power to do their jobs — interpreting state law and enforcing their state constitutions — in the sphere of federal elections. State legislatures could set federal voting and election rules and draw congressional maps without historically common and much-needed oversight. At its strongest, the ISL theory could also threaten gubernatorial veto power over federal election rules, citizen-led ballot measures changing election laws and independent redistricting commissions that draw congressional maps.
While this may sound absurd and far-fetched, the mere fact that the Court accepted this case on its merits docket should ring alarm bells. For decades, Republicans have been attacking voting rights from every possible angle, and now their fight made it to the nation’s highest court. With the power of state courts hanging in the balance, the stakes for democracy are immense. Moore v. Harper threatens the ability of individuals, organizations and states to combat suppressive voting laws and expand access to the ballot box through fair maps and inclusive voting practices.
All of this legal discussion surrounding this landmark case — which accompanies yet another crucial voting rights case on the Court’s docket this term — should not distract from the fact that the decision the Supreme Court hands down in Moore will affect voters, specifically minority voters, in very real ways. And, if these litigation tools are obliterated by the Supreme Court, there will be even fewer legal options available to fight back.
Absurd? Far-fetched? Well, the Court on Monday heard 303 Creative v. Elenis, “a case testing whether the free speech rights of a web designer who wants to withhold her services from gay couples is in violation of that state’s public accommodations law,” writes Dahlia Lithwick at Slate. Except 303 Creative’s Lorie Smith was never asked nor has she refused to provide services to any gay couple. No gay couples were harmed in the bringing of this case. That comes later. The case is based on a hypothetical. And yet the Roberts Court chose to hear it.
“There is no trial record and there are no facts, and instead there is just a whole lot of spit-balling about things that could happen someday in a comedic civil-rights-free galaxy far, far away,” Lithwick continues. “And what rushes in to fill the vacuum is a host of increasingly deranged hypotheticals, and also what now passes for high comedy at the Supreme Court.”
Funny? Not funny. It is one thing for a frightened has-been in Florida to muse about terminating the U.S. Constitution. It is quite another for the highest court in the land to consider retconning American democracy to conform to a framework extant during the Gilded Age or perhaps to when judges wore powdered wigs.
Our friends down under have more recent experience with the latter:
UPDATE: Marc Elias just posted his Moore v. Harper preview.