State Legislatures Must Answer to State Constitutions and Courts.
The fantasies of unlimited power by the narrow cabal now controlling the NC General Assembly were rejected last week by a surprisingly reasonable US Supreme Court decision. By a 6-3 vote, the Court rejected the radical “independent state legislature” theory which would have given legislators the right to ignore their state constitution and state courts in stacking election rules and districts however they saw fit. Three of the Court’s usually conservative members joined its three liberal members in the majority ruling.
The NC League of Conservation Voters (NCLCV) was on the prevailing side in the case, Moore v. Harper. In its final ruling, the Court upheld the long-established principle that state courts have power to interpret their state’s constitution as a check on legislative abuses of power in drawing electoral maps and other voting rules.
Writing for the Court’s majority, Chief Justice John Roberts said, “the framers of the Constitution recognized that state legislatures ‘are bound by the provisions of the very documents that give them life,’” meaning state constitutions. He added, quoting from the records of the Constitutional Convention of 1787, that the “legislatures, the framers recognized, ‘are the mere creatures of the state constitutions, and cannot be greater than their creators.’”
Further, the principle of judicial review of the constitutionality of legislative decisions is a well-established bedrock principle of how the American system of checks and balances among the three branches of government (legislative, executive, judicial) functions.
“We are asked to decide whether the Elections Clause carves out an exception to this basic principle,” said Roberts’ majority opinion. “We hold that it does not. The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”
Many legal scholars and Constitutional law attorneys commenting on the cases have said that approval of the radical “independent state legislature” theory would have opened the way for extraordinary abuses and presented a grave danger to American democracy itself.
“In the most extreme case, some Trump legal advisors in late 2020 wanted to use the theory to let state legislatures replace electors won by Biden with Trump-voting ones. They argued that any changes to voting procedures that year were improper if legislatures didn’t sign off on them and that legislatures should have the power to declare the winner of presidential races. North Carolina’s GOP-controlled legislature last year argued that the theory meant its state supreme court couldn’t overturn the map it drew that awarded a disproportionate share of the state’s 14 congressional districts to Republicans. But Chief Justice John Roberts, writing for the majority in the case, known as Moore v. Harper, dismissed that argument as historically and legally inaccurate.”
Unfortunately, this win at the US Supreme Court on the fundamental question presented in Moore v. Harper will not have the immediate effect of preventing North Carolina’s state legislature from restoring and worsening its political gerrymandering abuses. The NC Supreme Court majority which last year struck down the legislature’s Congressional map as a violation of the state constitution’s “free and fair elections” clause was wiped away in last fall’s judicial elections. The new Republican majority then took the extraordinary and unprecedented step of ordering a rehearing of the case, and without any change to the underlying facts, reversed the decision of the Court from last year. Over a blistering dissent from two holdover justices, the new Court majority declared that it had no power to strike down a district map on the basis of political gerrymandering, no matter how flagrant.
Speaking last week for NCLCV, Dan Crawford, Director of Governmental Relations, said, “Today, in a case that NCLCV has been fighting since 2021, the U.S. Supreme Court rejected the Independent State Legislature Theory and affirmed that, in a constitutional democracy, the courts do have a role in redistricting and protecting free and fair elections. This draws into sharp contrast the blatantly partisan decision by the North Carolina Supreme Court to concede total power to the legislature to select their own voters. Without the ability for every voter to choose their representatives, our environment and all North Carolinians will be at risk to deep-pocketed polluters and power-hungry politicians.”
In other words, here at home it will be back to the campaign trail in 2024, when North Carolina voters will be tasked with decisions in legislative, executive, and judicial races—decisions on which the future of our state’s environment and people will rest once again.
