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What to Know About the N.C. Elections Case Before the Supreme Court Next Week

Duke faculty expert says case could radically upend centuries of settled elections law and policy

state legislature
The North Carolina state legislature.

The U.S. Supreme Court on Dec. 7 will hear oral arguments in the Moore v. Harper case, which could lead to massive changes in the U.S. elections process by giving more power to state legislatures to oversee federal elections.

The proposal could overturn longstanding election practices and laws, warns Asher Hildebrand, a Sanford School associate professor of the practice.

The case arose of the efforts by Republican leaders of the N.C. state legislature to promote the “independent state legislature” theory. It holds that state legislatures -- and only state legislatures -- have the power to regulate federal elections in their states, irrespective of the constraints imposed by state constitutions or the efforts of state courts to enforce state laws, Hildebrand says.“This radical theory has no basis in history, no basis in legal precedent, and no basis in common sense; the fact that the Supreme Court is even considering it says far more about the extremism and diminishing credibility of the Court than it does about the merits of the theory,” says Hildebrand, a former chief of staff to U.S. Representative David Price (D-NC).

“If a majority of the court endorses the theory, the consequences for the future of American democracy cannot be overstated. In its broadest form, such a ruling would upend decades -- and in some cases centuries -- of settled laws, policies, and precedents governing the administration of our elections. Reforms to the congressional redistricting process would be overturned, ushering in a new era of extreme partisan gerrymandering.”

Hildebrand says state legislatures would have free rein to “impose restrictive voting laws.”

“Electoral reforms passed by voter initiatives, such as ranked-choice voting and non-partisan primaries, could be nullified. The day-to-day administration of elections would descend into chaos, as elections officials contend with divergent rules for state and federal elections, with each routine decision they make subject to litigation,” says Hildebrand, who served for nearly 15 years in congressional offices and on campaigns.  
“And those who seek to subvert the will of American voters in future elections would view the decision as a green light to take their chances in a permissive legal environment.”

Some proponents of the independent state legislature theory argue that such concerns are hyperbolic. They cite the possibility of a narrower interpretation in which courts and election administrators must adhere to the “plain language” of state constitutions and laws.

Hildebrand has concerns with that take on the theory.

“We should take no comfort in this possibility: Even a ‘narrower’ ruling could invite years of litigation and uncertainty, undermine public trust in our elections at a time when it is direly needed, and ultimately produce through ‘a thousand cuts’ what a ‘maximalist’ ruling would produce in one fell swoop. In either scenario, the damage to American democracy would be grave.”