Goldstone is the author of the forthcoming "Not White Enough: The Long Shameful Road to Japanese American Internment."
On Dec. 7, the Supreme Court heard oral arguments in Moore v. Harper, a landmark action in which a North Carolina legislator brought suit to void the state Supreme Court’s rejection of a blatantly partisan gerrymander by ruling it had violated the North Carolina Constitution. The state court found that the Republican-inspired redistricting plan deprived some voters — Democrats — of their guaranteed right “to substantially equal voting power on the basis of partisan affiliation.”
But the U.S. Supreme Court’s decision will extend far beyond North Carolina. It will determine whether the elections clause of the U.S. Constitution prohibits any checks and balances review of even the most egregious attacks on voting rights if enacted by a state’s legislature.
The passage, in Article I, Section 4, states, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.” The plaintiff, in effect, wants to insert “only” to make the clause read “in each State only by the Legislature thereof.”
Sign up for The Fulcrum newsletter
The ramifications of the decision are immense. Moore v Harper was described by conservative icon and former appeals court Judge J. Michael Luttig as “the most important case for American democracy in the almost two and a half centuries since America’s founding.” He added that refusing to allow a state’s Supreme Court to decide whether a partisan gerrymander was in violation of a state’s constitution “would be antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution.”
The plaintiff was advocating what has been called the “independent state legislature theory,” promoted by, among others, John Eastman, the man who also urged Vice President Mike Pence to refuse to certify the 2020 Electoral College results in Congress. The independent state legislature theory, until recently a fringe argument never taken seriously by American courts, is an offshoot of the “stolen election” argument and came to the fore when allies of then-President Donald Trump claimed legislatures were empowered to appoint alternate slates of electors who could cast their votes for Trump, regardless of the outcome of the popular vote.
During the oral arguments, it was no surprise that the plaintiff received his most sympathetic reaction from conservatives, especially those titans of fair play, Justices Samuel Alito, Clarence Thomas and Neil Gorsuch. Alito, author of the Dobbs decision and a finalist for hypocrite of year, was, without irony, deeply critical of the North Carolina Supreme Court for partisan excess. But “it was only Justice Neil Gorsuch who seemed entirely comfortable with the Moore lawyer’s argument,” according to Democratic attorney Marc Elias.
It might, then, be a good idea to introduce Gorsuch and some of his colleagues to a man who recognized the enormous risk to democracy in removing any check on the ability of state legislatures to set the rules for elections — James Madison.
On Aug. 9, 1787, the delegates to the Constitutional Convention were considering a draft of what would become the elections clause: “The times and places and the manner of holding the elections of the members of each House shall be prescribed by the Legislature of each State; but their provisions concerning them may at any time be altered by the Legislature of the United States.” The ensuing debate concerned whether or not the national legislature should indeed have the power to dictate election rules to the states. Some delegates wanted to remove national oversight, but Madison saw great peril in that. He rose and objected.
“It was impossible to foresee all the abuses that might be made of the [states’] discretionary power. Whether the electors should vote by ballot or viva voce; should assemble at this place or that place; should be divided into districts or all meet at one place; should all vote for all the representatives; or all in a district vote for a number allotted to the district. These and many other points would depend on the Legislatures and might materially affect the appointments. Whenever the State Legislatures had a favorite measure to carry, they would take care so to mold their regulations as to favor the candidates they wished to succeed. Besides, the inequality of the Representation in the Legislatures of particular States, would produce a like inequality in their representation in the National Legislature.”
Although Madison was not addressing whether state courts were allowed to have oversight authority under state constitutions, the broader question concerns whether any political body should have the absolute right to create an unfair electoral system that would be both self-serving and jiggled to be self-perpetuating. Madison’s answer was an emphatic “no,” and the delegates clearly adopted that view as evidenced by the painstaking care they took in leaving no authority unchecked.
Certainly, as Alito pointed out, a court might overstep its bounds and inject its own politics into the legislative process. (Who would know better than he?) In a democratic society, there is always a risk of abuse of power, which is why power must be diffused and not entrusted exclusively to any branch. In North Carolina’s case, the state Supreme Court — like the U.S. Supreme Court — is empowered to decide whether the legislature’s action comports with its constitution. To remove that oversight runs the very real risk of turning a two-party system into a one-party system.
As Madison also wrote in Federalist 47, “The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.”
Most Supreme Court justices. past and present, claim to revere Madison and often evoke him as a preeminent authority on both the Constitution and a democratic form of government. Justice Gorsuch and his conservative bedfellows should listen to him now.
