Doing the unthinkable ...

 Kumé Pather

On October 3rd, yours truly wrote a piece in BRT titled The Big One, describing Moore vs. Harper,  the case legal scholars are viewing as an entity able to bring down democracy if the SC rules that courts can be sidelined when state legislatures have the power to determine how elections will be conducted even if such politically driven decisions conflict with state constitution statutes. In an surperb opinion piece in the NYTimes, Ray Cooper, the governor of North Carolina, eloquently explains why Moore is indeed the big one as our democracy is at stake if this misguided court decides to do the unthinkable. 

To whit ...

Over the past six months, the United States Supreme Court has handed down one misguided ruling after another, stripping Americans of the constitutional right to an abortion, curtailing the regulation of guns and industrial emissions, and muddying the divide between church and state. The people have protested. They’ve organized. And in 2022, they voted.

In Dobbs v. Jackson Women’s Health Organization, the June decision on abortion, the majority wrote that “women are not without electoral or political power.” That’s one thing they got right, and Republicans found that out the hard way in the November midterm elections that they expected to win big. Now, however, the very ability to exercise electoral and political power at the ballot box is hanging in the balance in a case the court is scheduled to hear on Wednesday.

Moore v. Harper is a case from North Carolina that state and national Republicans are using to push an extreme legal premise known as the independent state legislature theory. While the United States Constitution delegates the authority to administer federal elections to the states, with Congress able to supersede those state decisions, proponents of this theory argue that state legislatures are vested with the exclusive power to run those elections. This view would leave no room for oversight by state courts and put the ability of governors to veto election-related legislation in doubt.

The court’s decision on this alarming argument could fundamentally reshape American democracy. Four justices have suggested that they are sympathetic to the theory. If the court endorses this doctrine, it would give state legislatures sole power over voting laws, congressional redistricting and potentially even the selection of presidential electors and the proper certification of election winners.

Indeed, the North Carolina Supreme Court, in a decision this year, said the theory that state courts are barred from reviewing a congressional redistricting plan was “repugnant to the sovereignty of states, the authority of state constitutions and the independence of state courts, and would produce absurd and dangerous consequences.”

As BRT has often stated, this is the worst SC in history save for Jackson, Kagan & Sotomayor. 

Ketanji Brown Jackson (AFP)

Addendum: Ketanji Brown Jackson asks the cosmic question proving Moore to be absurd.

Backgrounder ...

As the argument unfolded, three distinct camps emerged, with Jackson, Kagan, and Sotomayor opposed to the whole goofy theory; Alito, Gorsuch, and Thomas thrilling at the prospect of authoritarian rule; and the Chief, Barrett, and Kavanaugh wishing there was some way to let Republicans gerrymander at will without turning North Carolina elections into North Korean elections.

The question ...

I guess I don’t understand how you can cut the state constitution out of the equation when it is giving the state legislature authority to exercise the legislative power.

Akin to ... This sentence is false.