Op-Ed: Indiana could feel consequences of SCOTUS decision on ‘lawless legislature theory’
This op-ed was originally printed in The IndyStar on Dec. 10, 2022.
On Wednesday, the U.S. Supreme Court heard a case, Moore v. Harper, that could have huge consequences for our democracy. Although the case originated in North Carolina, it could potentially impact every state, including Indiana. This case began when North Carolina’s state legislature blatantly manipulated the state’s congressional districts to benefit Republicans over Democrats and discriminate against Black voters. After Common Cause and others challenged the map in state court, the North Carolina Supreme Court struck it down as an illegal racial and partisan gerrymander that violated the North Carolina Constitution.
This is where things get strange.
North Carolina legislators then asked the U.S. Supreme Court to intervene and proposed a radical legal argument that defies logic and precedent. The legislators argue that the U.S. Constitution prohibits state courts from hearing challenges to rules legislatures make regarding federal elections, from changes to vote-by-mail policies to the gerrymandering of congressional districts.
Legislators are essentially asking for unbridled power to manipulate our elections and undermine our votes with no checks and balances. State courts and governors would not be able to stop them.
The lawless legislature theory North Carolina politicians are promoting threatens more than the ability of Americans to fight back against rigged voting maps. It could open the door to widespread purges of voters from voting rolls, dramatic cuts to popular early voting and vote-by-mail options, discriminatory barriers to voting access, baseless challenges to fair election results and fewer protections against voter intimidation.
The impact of this shocking theory could be devastating to democracy right here in Indiana.
State law and the Indiana Constitution already give the Indiana General Assembly an almost unfettered opportunity to manipulate the decennial redistricting process to favor the majority party. The only legal recourse we have is the free and equal elections clause in our constitution, which, in theory at least, could be used to seek relief from partisan gerrymandering in state court. A decision in favor of the North Carolina legislature in Moore v. Harper would extinguish any opportunity we have to force the General Assembly to stop manipulating redistricting for political gain.
This is not the first time that the U.S. Supreme Court has heard the legislators’ legal theory. In fact, the Justices tried to sweep this dangerous idea into the dustbin of history about a century ago. In separate cases in 1916 and 1932, lawmakers tried to argue that voters and governors had no say against rigged voting maps. The court rejected these absurd ideas and should do so again.
More recently, Chief Justice Roberts affirmed in a 2019 decision the last time Common Cause was at the court fighting for voters that state law and state courts can shut down partisan gerrymandering of congressional districts. The court has consistently held that the normal checks and balances that form the foundation of our representative democracy apply to state legislatures making rules for federal elections.
We believe that the facts and the law are on our side in this case. The U.S. Constitution does not somehow empower state courts to protect our voting rights in state and local elections while prohibiting the same oversight in federal elections. North Carolina politicians’ legal argument simply makes no sense and constitutes a grave threat to our democracy. We were proud to tell the U.S. Supreme Court why this week.