GREENSBORO, NORTH CAROLINA The whole world should be worried, but few even realize what is happening.
So said a law professor at the University of North Carolina Gene Nichol described the situation last week, when decisions from the US Supreme Court were still awaited in the spring term.
Nichol pointed to the voting rights court case Moore v. Harper, which he feared would destroy the entire American democracy.
– Moore v. Harper is a landmark case in the eyes of those concerned about American democracy. The Supreme Court can use it to limit the ability of state courts to uphold the rules of democracy, Nichol said.
The case is so significant that even the presidential administration had asked the Supreme Court not to issue a verdict.
However, the Supreme Court did not listen, but continued to hear the case.
On Tuesday, the Supreme Court issued a 6-3 majority decision in which it supported the basic pillar of democracy, i.e. voting rights.
The decision is historic, as it saved the US electoral system from an unprecedented upheaval.
But what was it all about and are voting rights safe now?
Outline of the future of election laws
The task of the US Supreme Court is to interpret how laws and interpretations made in different states relate to the Constitution. The Supreme Court’s decisions form precedents that guide legal interpretation and legislation.
The nine-person jury decides by voting which cases it will take up. In practice, the Supreme Court deals with legal cases through which the jury wants to guide the entire country’s legal system.
That’s exactly why organizations defending voting rights were startled when the Supreme Court decided last summer to take up a legal case that originated in the state of North Carolina.
The case began when the state Supreme Court rejected the redistricting drawn by North Carolina’s Republican-dominated Congress. According to the state court, the redistricting was a political gimmick because it clearly favored the Republican Party.
Lawmakers didn’t like their own court’s decision, and decided to challenge it to a higher court, where the case went by the name of Moore v. Harper.
Constituency gerrymandering is a bipartisan practice in the United States, and related legal disputes are not unusual. What made Moore v. Harper extraordinary—and, according to Nichol, dangerous—was the argument North Carolina lawmakers used to win the case.
Campaign for voting rights
North Carolina legislators used the so-called independent legislature theory of law in their defense.
According to the theory, the US Constitution would give the politicians leading the states full rights to decide all the practices related to the organization of elections at the national level, without the interference of the courts.
If the Supreme Court had sided with North Carolina’s lawmakers on this rationale, state policymakers across the country would have had pretty much a free hand to hold elections.
It would have had significant consequences for voting rights, and possibly, for example, for the confirmation of presidential elections.
– Although this case deals with electoral district division, the theory could then be used for other laws protecting the right to vote. And the real concern is that if the courts are completely bypassed, lawmakers could potentially overturn the election results, Nichol commented while awaiting the ruling.
Nichol was not the only party concerned about the future of democracy. For example civil rights organization ACLU and Brennan Center for Justice think tank had expressed similar concerns.
The concern of organizations and legal scholars led to loud exits. In particular, state supreme court justices became active in defending the role of the courts as guardians of voting rights. Among other things, the judges wrote several opinions addressed to the federal Supreme Court, the message of which was always the same: the theory of independent legislatures is not a valid constitutional theory.
The presidential election is safe, for now
The theory of independent legislators has been discussed by the Supreme Court before. For the most part, the Supreme Court has rejected the theory, as has the broader community of American jurists and judges.
– The theory of independent legislators is so radical that it has not been successfully used in court even in the 1960s or earlier. But it’s not at all surprising that it’s being revived right now, says Nichol.
The timing for the radical theory was opportune, as conservative justices currently have a 6-3 majority in the Supreme Court. Some of the judges had shown interest in the theory.
During the public hearing of the case, attention was drawn to the so-called middle-line conservative judges John Roberts, Brett Kavanaugh and Amy Coney Barrett, who were skeptical about the validity of the theory. They all ended up voting against the theory of independent legislators.
Overall, the Supreme Court has positioned itself to defend voting rights in its decisions over the summer regarding the Alabama and Louisiana electoral districts.
However, Moore v Harper is the most significant of the decisions, as it prevents new legal cases from being justified by a marginal legal theory – at least for the foreseeable future.