Skip to content
Search

Latest Stories

Top Stories

Like Citizens United, Moore v. Harper could haunt American democracy

Like Citizens United, Moore v. Harper could haunt American democracy

Organizations and individuals gathered outside the Supreme Court argue the manipulation of district lines is the manipulation of elections.

Photo by Aurora Samperio/NurPhoto via Getty Images

O’Brien serves as Policy Director at RepresentUs. He is an attorney focusing on legislation and policy issues.

This Saturday, January 21st, marks the thirteenth anniversary of the famous Citizens United v. Federal Election Commission Supreme Court decision. This year, we’re not going to celebrate in the traditional way: sending unlimited corporate contributions to super PACs. Instead, we’re marking the date by warning about another Supreme Court case that also has the potential to radically reshape American politics: Moore v. Harper.


The effects of Citizens United were immediate and long-lasting. The nonpartisan organization Open Secrets found that in the two decades before Citizens United, non-party outside groups spent $750 million on campaigns. In the one decade since Citizens United, that number exploded to $4.5 billion – a six-fold increase.

While activists and good government groups raised alarms about Citizens United at the time, American politics has changed in ways few could have imagined. Once unthinkable amounts of political spending are now routine. According to the same Open Secrets report, as of 2020, eight of the ten most expensive Senate elections and nine of the ten most expensive House elections in American history have happened after Citizens United. For better or worse (and it’s definitely worse), we’re now living in a post-Citizens United world.

Sign up for The Fulcrum newsletter

But if you thought post-Citizens United was a seismic shift, the post-Moore world could be even bigger. Where Citizens United opened the floodgates to big money in politics, Moore v. Harper could all but eliminate checks and balances at the state level.

The specifics of the Moore v. Harper case center around gerrymandering. During the 2021 redistricting process, the North Carolina Legislature passed a congressional map that, according to the Princeton Gerrymandering Project’s Redistricting Report Card, was extremely gerrymandered. Voters brought a lawsuit challenging the gerrymandered map, and the North Carolina Supreme Court found it violated several provisions of the state constitution. Ordinarily, this would be the final word because state courts are the highest authority when it comes to state constitutions.

But in an unusual move, the North Carolina General Assembly appealed the state supreme court’s decision to the U.S. Supreme Court. They rely on a fringe interpretation of the U.S. Constitution called the independent state legislature theory (ISL). Under extreme versions of ISL, state legislatures could have unchecked power at the state level over federal elections, unrestrained by state courts and constitutions. That means that when it comes to federal elections, regular checks and balances in the lawmaking process could be at risk – including state court review, ballot initiatives, and gubernatorial vetoes.

The fate of North Carolina’s congressional districts is the immediate issue at hand. But the eventual impact is even more disturbing. If the Court decides to recognize ISL, decades of precedent could be upended. State legislatures could ignore state constitutions when it comes to federal elections – and there’d be nothing the courts could do to stop them. Voters might not be able to reform federal elections by ballot measure. Independent redistricting commissions might not be an option to fight congressional gerrymandering.

It’s difficult to count the sheer number of election laws and practices that could be at risk under ISL. But many parts of the voting process that you probably take for granted are at risk. As our States of Chaos report details, every state’s election laws would be vulnerable, including policies that touch on nearly every aspect of American democracy. Many people don’t realize, for example, that the right to a secret ballot does not exist in the U.S. Constitution and is primarily guaranteed through state constitutions. If, as ISL proponents insist, state legislatures can’t be bound by state constitutions when it comes to federal elections, that right will only exist at the whim of politicians.

For voters, the impact could be profound. You might live in a congressional district drawn by a redistricting commission. You might be a person who counts on voting absentee if you’re sick or out of town on Election Day, or simply because you prefer to do it that way. Perhaps you vote for members of Congress using Ranked Choice Voting, or by choosing one of the two candidates that have advanced from an open, nonpartisan primary election. However you cast your ballot, you’re confident that who you voted for is a secret. A state legislature could wipe all of that away if the Supreme Court recognizes ISL.

Citizens United opened the floodgates of dark money into our elections, but Moore could fundamentally change the structure of federal elections. Some say that we shouldn’t worry about Moore because many of the things ISL threatens are settled law – already decided by the Supreme Court. That might be wishful thinking, since it ignores the reality that many of the issues in Citizens United had been settled law too. That settled law didn’t stop the Court from overturning its own precedents in that case. Nothing can stop the Court from upending years of precedent and practice if it wants to side with special interests over democracy and politicians over voters.

Thirteen years later, many Americans rightly point to Citizens United as a dangerous turn for our democracy. Thirteen years from now, we may say the same thing about Moore v. Harper.

Read More

Blurred image of an orchestra
Melpomenem/Getty Images

The ideal democracy: An orchestra in harmony

Frazier is an assistant professor at the Crump College of Law at St. Thomas University. Starting this summer, he will serve as a Tarbell fellow.

In the symphony of our democracy, we can find a compelling analogy with an orchestra. The interplay of musicians trained in different instruments, each contributing to the grand musical tapestry, offers lessons for our democratic system. As we navigate the complexities of governance, let us draw inspiration from the orchestra's structure, dynamics and philosophy.

Keep ReadingShow less
David French

New York Times columnist David French was removed from the agenda of a faith-basd gathering because we was too "divisive."

Macmillan Publishers

Is canceling David French good for civic life?

Harwood is president and founder of The Harwood Institute. This is the latest entry in his series based on the "Enough. Time to Build.” campaign, which calls on community leaders and active citizens to step forward and build together.

On June 10-14, the Presbyterian Church in America held its annual denominational assembly in Richmond, Va. The PCA created considerable national buzz in the lead-up when it abruptly canceled a panel discussion featuring David French, the highly regarded author and New York Times columnist.

The panel carried the innocuous-sounding title, “How to Be Supportive of Your Pastor and Church Leaders in a Polarized Political Year.” The reason for canceling it? French, himself a long-time PCA member, was deemed too “divisive.” This despite being a well-known, self-identified “conservative” and PCA adherent. Ironically, the loudest and most divisive voices won the day.

Keep ReadingShow less
Fannie Lou Hamer

Fannie Lou Hamer testifies at the Democratic National Convention in 1964.

Bettmann/Getty Images

60 years later, it's time to restart the Freedom Summer

Johnson is a United Methodist pastor, the author of "Holding Up Your Corner: Talking About Race in Your Community" and program director for the Bridge Alliance, which houses The Fulcrum.

Sixty years have passed since Freedom Summer, that pivotal season of 1964 when hundreds of young activists descended upon an unforgiving landscape, driven by a fierce determination to shatter the chains of racial oppression. As our nation teeters on the precipice of another transformative moment, the echoes of that fateful summer reverberate across the years, reminding us that freedom remains an unfinished work.

At the heart of this struggle stood Fannie Lou Hamer, a sharecropper's daughter whose voice thundered like a prophet's in the wilderness, signaling injustice. Her story is one of unyielding defiance, of a spirit that the brutal lash of bigotry could not break. When Hamer testified before the Democratic National Convention in 1964, her words, laced with the pain of beatings and the fire of righteous indignation, laid bare the festering wound of racial terror that had long plagued our nation. Her resilience in the face of such adversity is a testament to the power of the human spirit.

Keep ReadingShow less
Kamala Harris waiving as she exits an airplane

If President Joe Biden steps aside and endorses Vice President Kamala Harris, her position could be strengthened by a ranked-choice vote among convention delegates.

Anadolu/Getty Images

How best to prepare for a brokered convention

Richie is co-founder and senior advisor of FairVote.

As the political world hangs on whether Joe Biden continues his presidential campaign, an obvious question is how the Democratic Party might pick a new nominee. Its options are limited, given the primary season is long past and the Aug. 19 convention is only weeks away. But they are worth getting right for this year and future presidential cycles.

Suppose Biden endorses Vice President Kamala Harris and asks his delegates to follow his lead. She’s vetted, has close relationships across the party, and could inherit the Biden-Harris campaign and its cash reserves without a hitch. As Rep. Jim Clyburn (D-S.C.) suggested, however, Harris would benefit from a mini-primary among delegates before the convention – either concluding at the virtual roll call that is already planned or at the in-person convention.

Keep ReadingShow less