Opinion | The Supreme Court isn’t done striking down democracy


AP Photo/Jacquelyn Martin, File

Protesters gather outside the Supreme Court in Washington, Friday, June 24 after the Supreme Court revoked the federal right to an abortion.

By Ebonee Rice-Nguyen, Senior Staff Columnist

It seems like in the span of two weeks the United States Supreme Court has managed to alter almost every aspect of American life. 

From overturning Roe v. Wade to limiting the power of the Environmental Protection Agency to even expanding the carrying of concealed weapons, the U.S. stands at a dangerous crossroads, and many Americans are afraid of what direction the nation is lurching toward with the Supreme Court at the helm. But the madness is far from over. 

On one of the final days of an increasingly chaotic term, the U.S. Supreme Court announced its decision to hear the case of Moore v. Harper. This case holds the potential to backslide the entire democratic process the United States was founded on.

The Moore v. Harper case would allow the Supreme Court to initiate the “independent state legislative theory”— an idea that would radically reshape the way federal elections are overseen and conducted. The theory grants state legislators independent authority over elections, free from the review of state courts, and is an interpretation of the Constitution pushed by a small group of advocates in recent years. This decision opens the door for legislators to manipulate election rules at odds with state constitutions and gives open access to politicians hoping to gerrymander their way into election seats. 

The case originates from North Carolina, where the Republican-controlled legislature is hoping to restore a congressional map previously struck down by the state Supreme Court for its partisan gerrymandering. The court decided the map violated the state constitution, yet in an emergency application from Republicans, legislators stated, “The question presented here goes to the very core of this nation’s democratic republic: what entity has the constitutional authority to set the rules of the road for federal elections.”

As the recent presidential election brought more attention to the issue of voting rights, many state courts have become increasingly active in regulating gerrymandered districts. States such as New York, North Carolina and Pennsylvania have all played an essential role in preventing partisan congressional maps from becoming the law. 

If the U.S. Supreme Court rules in favor of state legislators and not fair, democratic elections, it would leave few avenues for courts to challenge unconstitutional congressional maps. Partisan gerrymandering would be legal with no way of checking the proposed partisan maps. 

But the impact of the Supreme Court’s decision in Moore v. Harper would go beyond the issue of gerrymandering. A ruling in favor of state legislatures would also cause state courts to lose their power to strike down laws that subvert election results. Richard L. Hasen, a law professor at the University of California, told the New York Times that the decision to back the independent state legislative theory could grant the Supreme Court the power to interfere with presidential election results. 

“It would also give the Supreme Court a potential excuse to interfere with presidential election results any time a state court or agency has relied on a state constitution to give voters more protections than those afforded by the U.S. Constitution,” Hasen said.

If the court rules in favor of state legislators, it would have very real consequences for Pennsylvanians as well. 

Pennsylvania’s representatives could freely manipulate the election process with almost no consequences. This is particularly troubling for PA congressional maps which the media has referred to as housing the most extreme levels of partisan bias in the country, along with Michigan and North Carolina. In 2011, Pennsylvania’s map was even referred to asthe gerrymander of the decade.” The 2020 presidential election demonstrated that PA officials have not progressed past manipulating the law to ensure elections hold the results they want. 

When the Supreme Court rejected a Texas attempt to void the electoral votes from PA, more than 70 members of the Pennsylvania General Assembly alongside 24 members from the Senate urged the court to take up the case. Nine of Pennsylvania’s GOP congressmen, not including Brian Fitzpatrick and Lloyd Smucker, filed briefs with the court seeking to void an election in which their party expanded its ranks in the chamber

During this period, state senator and gubernatorial candidate Doug Mastriano proposed a resolution to allow state legislators to choose their own presidential electors. This effort would have given Trump 20 electoral votes, a highly corrupt attempt to block Congress from accepting the election results. 

These instances show that Republican Pennsylvania legislators are completely comfortable with abusing the election process if it grants them a victory. A majority of them actively tried to disenfranchise thousands of Pennsylvanians to secure Donald Trump in the White House. While checks are in place to ensure that legislatures can’t outright oppose the popular vote, the Moore v. Harper case could grant representatives the ability to rig the election before it even starts. No longer would citizens and state constitutions be the ones in charge of the democratic process instead the state legislators would hold the power.

If the Supreme Court buys into this radical doctrine, the type of theatrics that Trump and other Republican representatives used to try to overturn the election wouldn’t be seen after elections. Biased election procedures would already be the law.

If the independent state legislative theory is embraced, officials will reshape the presidential election process well before 2024. This decision will potentially open a door to a place the United States will never be able to return from — a place where democracy doesn’t exist. 

Ebonee Rice-Nguyen writes primarily about political, social and cultural issues. Write to her at [email protected].