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Judicial Coup? SCOTUS Gerrymandering Case May Let GOP State Legislatures Control Federal Elections

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The U.S. Supreme Court announced Thursday it will hear oral arguments in a case experts warn could be one of the greatest threats to U.S. democracy since the deadly January 6 insurrection at the Capitol. In October, the court will hear Moore v. Harper — a case which seeks to reinstate gerrymandered congressional maps that were struck down by North Carolina’s highest court. A ruling in favor of North Carolina Republicans could revive a marginal right-wing legal theory known as independent state legislature doctrine, potentially stripping state courts of their power to strike down state laws, while expanding the power of GOP-controlled state legislatures to control federal elections. We speak with law professor Carolyn Shapiro, director of the Institute on the Supreme Court of the United States at Chicago-Kent College of Law. Shapiro says a ruling in favor of North Carolina Republicans would be “extremely problematic from the perspective of democracy” and “could cause enormous chaos.”

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman.

The U.S. Supreme Court announced Thursday it will hear oral arguments in a case experts warn could be one of the greatest threats to U.S. democracy since the deadly January 6th insurrection at the Capitol. In October, the court will hear Moore v. Harper, a case which seeks to reinstate gerrymandered congressional maps that were struck down by North Carolina’s highest court. A ruling in favor of North Carolina Republicans could strip state courts of their power to strike down state laws, while expanding the power of GOP-controlled state legislatures to control federal elections. Legal arguments brought forward by plaintiffs in Moore v. Harper could drastically alter how congressional and presidential elections are conducted.

At the heart of the case, a theory known as ISLT — that’s the independent state legislature doctrine — which the Supreme Court has repeatedly rejected for well over a century. But the theory has gained support in the new majority-conservative court. Justices Neil Gorsuch, Clarence Thomas, Samuel Alito and Brett Kavanaugh have all endorsed different versions of this doctrine. The three liberal justices have signaled they will not overrule the Supreme Court’s many precedents rejecting the doctrine. This means the fate of the case could rest in the hands of Justice Amy Coney Barrett. Just one day before the Supreme Court agreed to hear Moore v. Harper, it ruled 6 to 3 to reinstate a Republican-drawn congressional map in Louisiana struck down by a lower court as a racially motivated violation of the Voting Rights Act.

New York Democratic Congressmember Alexandria Ocasio-Cortez tweeted, quote, “We are witnessing a judicial coup in process. If the President and Congress do not restrain the Court now, the Court is signaling they will come for the Presidential election next,” unquote.

For more, we’re joined by Carolyn Shapiro, professor of law and director of the Institute on the Supreme Court of the United States at Chicago-Kent College of Law, co-authored the recent Washington Post op-ed headlined “A new Supreme Court case threatens another body blow to our democracy.” She is a former clerk to the now-retired Supreme Court Justice Stephen Breyer.

Professor Shapiro, welcome to Democracy Now! Can you just start off by laying out the significance of the court taking up this case, and what you’re most concerned about?

CAROLYN SHAPIRO: [inaudible]

AMY GOODMAN: If you could start again? We’re not — yeah, I think you’re muted. If you could start again?

CAROLYN SHAPIRO: [inaudible]

AMY GOODMAN: No, don’t hear you. Oh, I think we hear you.

CAROLYN SHAPIRO: Can you hear me now?

AMY GOODMAN: Yes, we hear you now. Go ahead.

CAROLYN SHAPIRO: I’m so sorry. Well, first of all, thank you for having me. Sorry for the glitch.

The case is very important. In 2019, when the Supreme Court said that partisan — extreme partisan gerrymandering claims couldn’t be heard by federal courts, in a 5-4 decision, it said, “That’s OK. Don’t worry. There are other ways to challenge extreme partisan gerrymandering, and one of those ways is through state constitutions.” That’s exactly what happened in Moore v. Harper, and now the Republican legislators who drew this map, that dramatically skews a congressional delegation in favor of Republicans, are suing and saying that, in fact, the state constitution and the state courts don’t have the power to limit partisan gerrymandering or, for that matter, to in any other way constrain legislatures when they regulate federal elections. So, this could open the door to a host of problems. It eliminates the kinds of ordinary checks and balances that we expect courts and constitutions to place on legislatures.

AMY GOODMAN: Tell us who Moore is.

CAROLYN SHAPIRO: So, Moore is one of the Republican leaders of the North Carolina state Legislature. And North Carolina has a law that allows him and some of his colleagues to intervene in this case and to bring this lawsuit. What they want to be able to do is to draw maps for the congressional districts that the North Carolina Supreme Court has already said violate the North Carolina Constitution. Normally, state legislatures can’t do things that violate their state constitutions. But this ISLT, or independent state legislature theory, says that they do have the power to do that when it comes to regulating federal elections. The reason for that has to do with the language in two clauses of the Constitution that gives state legislatures the responsibility and the power to regulate federal elections. But nothing in the federal Constitution suggests that they get to do that free of the ordinary limitations of state constitutions. So, this would —

AMY GOODMAN: So, explain this in practical terms. Are we talking about federal elections and state elections, you have to deal with them separately in each state? How do people vote?

CAROLYN SHAPIRO: This is a great question, and it is one of the really big problems with the ISLT. What it suggests is that a state legislature could pass a single law that governs federal and state elections, which is what happens in most states, and that if a state court finds that some aspect or all of that statute to be unconstitutional under the state constitution, it still has to apply to federal elections. So, you might find yourself — a state might find itself with two registration systems or two different mail-in deadlines for absentee ballots, all depending on the particular state constitutional issues that the state court rules on. This doesn’t — this makes less than no sense as a matter of separation of powers. It doesn’t make any sense as a matter even of imagining what a legislature might have intended when it passes a single law governing both state and federal elections. So it could cause enormous chaos.

It also opens the door to a kind of mischief. Or, mischief is an understatement. It gives the state legislatures the power to do things that they wouldn’t otherwise be able to do. And so they could pass laws that govern just federal elections that are extremely problematic from the perspective of democracy. They could draw, for example, as in North Carolina, incredibly gerrymandered congressional districts. They could even potentially create systems in which a state legislature gets to resolve any disputes over election results in federal elections, which would include presidential elections. And we could imagine what that might look like down the road. It could be extremely dangerous. Much of that, if not all of it, would be unconstitutional under many, if not all, state constitutions. But under the ISLT, that wouldn’t matter.

AMY GOODMAN: Finally — we just have 30 seconds — how does this relate to the Voting Rights Act?

CAROLYN SHAPIRO: Well, they’re both — both the Voting Rights Act and the ISLT — or, a movement against the ISLT, are ways of trying to protect voting, to protect the power of the people to choose their own representatives. And in those cases, as in others, the Supreme Court, the majority, continues to cut back on protections for voting and protections for democracy. It’s extremely dangerous.

AMY GOODMAN: And again, ”ISLT” stands for something you’ll be hearing much more of with this court, the independent state legislature theory. And we want to thank professor Carolyn Shapiro, professor of law and director of the Institute on the Supreme Court of the United States at Chicago-Kent College of Law at the Illinois Institute of Technology. We’ll link to your piece in The Washington Post, “A new Supreme Court case threatens another body blow to our democracy.” I’m Amy Goodman. Thanks for joining us.

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