The most frightening case on the Supreme Court's docket is Moore v.Harper. The future of American democracy could be decided by this decision.
Moore v.Harper is scheduled to be argued next month. The case arises from partisan gerrymander of congressional districts in North Carolina, a purple state that went for Obama in 2008 and for Republicans since then, but always by narrow margins. Donald Trump won the state by a small margin in 2020.
Republicans took control of the North Carolina legislature in the middle of the last decade and redrew congressional districts. They wanted to give Republicans control of 10 of the state's 13 congressional seats.
There is an opinion.
Republicans chose the map that was the most likely to benefit them. Republican and Democratic candidates for Congress got the same number of votes in the state, but Republicans won most of the races.
The Supreme Court decided that federal courts can't hear challenges to partisan gerrymanders. According to the court, political questions may not be decided by the federal judiciary. The justices left it to state courts to determine if partisan gerrymandering is in violation of the state constitution.
The states redrew their election districts after the census. The legislature drew the districts so that the Republicans could win 10 or 11 of the seats. The state constitution was found to be in violation by the Supreme Court.
The legislature and its supporters argued that the North Carolina Supreme Court didn't have the authority to hear the case. Section 4 of the U.S. Constitution states that the legislature of each state will decide when and where congressional elections are held. The independent state legislature theory says that a legislature's decisions about elections are not subject to judicial review.
There are a lot of issues with this theory. Courts are able to review legislative actions to make sure they are in line with the law. The courts have the power to decide if an act of Congress is in violation of the constitution.
No court could ever review laws regulating elections for Congress even if they were egregiously unconstitutional. No court could review partisan gerrymandering even if it was extreme.
The independent state legislature theory has ramifications beyond that. The power of the legislature to allocate each state's presidential electors could have serious implications for the next election.
If the 2020 election is as close as the 2024 presidential election, what would you think? In several states two years ago, a Democratic candidate won the popular vote in a state with a Republican legislature. The winner of the popular vote in a state must get the electoral votes in order for the legislature to award them to the Republican candidate. Several state legislatures were urged by Donald Trump to do that in 2020.
The independent state legislature theory could allow states to do that in the future. The presidential election could be decided by a few states. I don't think American democracy would last that long. There is a chance that the country will come apart.
Since Marbury v. Madison, judicial review of legislative acts has been a key feature of American government. The Supreme Court should protect judicial power and see the danger of this theory. I'm very concerned.
At the UC Berkeley School of Law, Chemerinsky is the dean.
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