More hypocrites in Moore v. Harper case
Gorrell is an advocate for the deaf, a former Republican Party election statistician, and a longtime congressional aide.
During the Moore v. Harper case argument inside the Chamber of the United States Supreme Court (SCOTUS) on the anniversary of Pearl Harbor Day (Dec. 7), I "listened" to what the justices and attorneys talked about via a sign language interpreter for the deaf. I realized that the argument went longer than the usual time limit by adding two more speakers (Solicitor General and Second Attorney for the Respondents), so I asked the interpreter if it was okay to continue signing. She nodded and admitted to enjoying challenges in interpreting legalese from highly brilliant-minded lawyers.
Brilliant-minded? Of course, they are brilliant, but I had smelled something fishy about some hypocrisy in the case of highly competitive North Carolina. A 4-3 Democratic majority on the North Carolina Supreme Court (NCSC) blocked Republican efforts to draw congressional districts heavily in their favor.
Two months later, on Feb. 3, the new 5-2 Republican majority on the NCSC agreed to rehear the redistricting case known at the state level as Harper v. Hall. That blockbuster decision could make the SCOTUS case moot. The rehearing date for this state case will be Mar. 14, 2023.
The Moore watchers have joined Election Law Blogger Rickard Hagen in checking the public docket daily to see if either party at the SCOTUS has notified the Court about the rehearing grant. (Note: Any matters involving congressional redistricting at the state Supreme Court could be moot.)
Rallying for the Moore Respondents, the independent state legislature theorists have exclaimed that state courts should overturn state legislatures’ decisions on congressional maps. Do the same theorists not want the new NCSC to invalidate the current non-gerrymandered state senate district map?
What stunning hypocrisy!
Below are the examples of the Moore hypocrites:
Tim Moore, Speaker of the North Carolina House of Representatives
In his appeal to the SCOTUS, Speaker Tim Moore used the independent state legislature doctrine to argue that there can be no judicial review of the Republican state legislatures’ decisions to create gerrymandered voting maps. He told NBC News, “Moore said in an interview that he backed the theory because it is the only way to challenge a state court ruling that he believes was not based on law or precedent.”
Hypocrisy: In 2009, Speaker Moore co-sponsored N.C. House Bill 252, which called for a citizens' commission to draw congressional and legislative voting districts free from all political consideration, but neither bill got the Democratic-controlled legislature's hearing.
If mooted, Moore will have to cancel his plan to stay one week in Washington DC in late June and will prepare seriously for the Mar. 14 hearing in the NCSC.
Former United States Secretary of Labor Robert Reich
In his 2022 YouTube video, "This Supreme Court Case Could Determine Who Wins Future Elections," Robert Reich cautioned viewers that "the decision in this [Moore] case could give state legislatures the power to disregard the popular vote and substitute their own slate of electors pledged to whomever they wish." Reich feared that the outcome would empower state legislatures to steal elections from a rival party's presidential winner by ignoring the people's vote.
Hypocrisy: In his 2017 YouTube video, "How Do We Abolish the Electoral College?," Reich explained to viewers that Article II, Section 1, Clause 2 of the U.S. Constitution says each state legislature can award their electors to the Election College at any way they want. Reich paused that the state legislature could award all their electoral votes to the candidate who wins the popular vote in that state.
If mooted, Reich will resume persuading state legislatures of 35 states to join the National Popular Vote Interstate Compact, which would send their electors based not on any votes counted in their own state but on the nationwide popular vote.
Maryland State Attorney General Brian Frosh and New York State Attorney General Letitia James
Attorney Generals Frosh and James joined a national coalition of 22 state attorney generals in filing an amicus brief in defense of Respondents in Moore v. Harper, a case involving North Carolina's gerrymandered congressional map.
Hypocrisy: Frosh and James defended the gerrymandered congressional maps passed by the Democratic-controlled legislatures in their respective state appellate courts last spring. However, according to the AG's press release, their brief does not focus on redistricting but backs States' ability to enforce their constitutions to ensure free and fair elections.
If mooted, James and Frosh's successor, Anthony G. Brown, will consider opening the door to redraw maps where their courts intervened in redistricting disputes.
Democratic election lawyer Marc Elias
Marc E. Elias of the Elias Law Group had targeted Republican-gerrymandered maps, including those in Georgia, Michigan, North Carolina, Ohio, Pennsylvania, South Carolina, and Texas. Now Elias has feared that if the Moore litigants won, it would cripple his firm has become the central node of the official Democratic Party’s legal strategy because they could not file any redistricting litigations to state courts. He told CNN on Oct. 26 that “It is important that the court slam the door on this fringe theory and recognize the vital role of judicial review in our democratic system.”
Hypocrisy: Last year Elias, representing the Democratic Congressional Campaign Committee, shocked anti-gerrymandering advocates by filing a motion to intervene to protect Maryland’s Democratic-gerrymandered congressional map. He also did something similar to the New York Democratic legislators. The Princeton Gerrymandering Project gave both states' maps an ‘F’ rating for fairness.
If mooted, Elias will instruct his associates to speed up resolving court procedures to favorably position Democrats for the congressional redistricting in several states through 2024.
U.S. Rep. Zoe Lofgren (D-Calif.)
On Jul. 28, Rep. Zoe Lofgren chaired the House Committee on House Administration’s one-day hearing, “The Independent State Legislature Theory and Its Potential to Disrupt Our Democracy.” She said, “The theory is not grounded in historical precedent or logic, but it has gained an increasing following in some sectors of America over the past 20 years.”
Hypocrisy: Rep. Lofgren introduced legislation pushing independent redistricting commissions in eight consecutive congressional sessions (2005-2020). It died in committee each time it was introduced because it lacked adequate support among Democratic leadership to advance.
If mooted, we have yet to learn why Lofgreen had not reintroduced her redistricting reform bill in the past Congress session. Now, the Republicans retook the House last month. Will she reintroduce her bill??
The 1787 Constitutional Convention
To answer Virginia’s Federalist James Madison’s concerns about the excessive powers of the state legislatures, Anti-Federalist John Francis Mercer of Maryland asked his fellow delegates to the Constitutional Convention in Philadelphia on Aug. 14, 1787, “What led to the appointment of this Convention? The corruption & mutability of the Legislative Councils of the States.” Signing their names to the freshly-inked United States Constitution, the framers did not trust state legislatures to run elections.
If mooted, it shall continue the gerrymandering war for another decade!
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- Judicial review is unsettling - The Fulcrum ›
- Supremely pragmatic on SCOTUS ruling - The Fulcrum ›