The Biggest Threat to Our Democracy

If the Republicans win Moore v. Harper now before the U.S. Supreme Court, the ruling will undoubtedly lead to multiple state parties using it to strip Americans of the right to free and fair elections.

Are Trump and the insurrectionists the biggest threats to our democracy? A case could be made. But an important case is moving through the docket of the United States Supreme Court, with arguments being heard as I write this.

With the 2024 election looming, the high court is hearing arguments in the case of Moore v. Harper. While most of my readers are probably familiar with the concept of ‘gerrymandering,’ I would venture a guess that very few are familiar a similar doctrine known as the ‘independent state legislature.’ Legal experts are calling this the biggest threat to free and fair elections in our lifetime, with huge consequences for all future elections.

In the Moore case, the North Carolina Supreme Court undid an extremely partisan gerrymander of the state’s congressional map. The scheme,if approved, would have conferred a huge advantage on Republicans in House seat races. Numerous state legislators (all Republicans, of course) appealed to the Supreme Court to restore their biased maps, arguing that the state supreme court lacked the power to review their map, even though it violated state constitutional guarantees.

Recently, democratic North Carolina Attorney General Josh Stein argued the case in U.S. Supreme Court. He opined (correctly, in my opinion) that North Carolina’s state Supreme Court has the authority to act as a check and balance on that state’s GOP dominated legislature in plotting congressional maps. GOP lawmakers argued that this ‘independent state legislature theory’ confers on state legislatures the ultimate authority on federal elections.

Sound familiar? It should. It is the same ‘theory’ used by Donald Trump to try to overturn the 2020 presidential election. While this may sound wacky and unimportant to some, it is the centerpiece of the GOP’s argument. If the Republicans win Moore v. Harper, the ruling will undoubtedly lead to multiple state parties using it to strip Americans of the right to free and fair elections. To use Donald Trump’s words, we will have a “rigged system.”

The independent state legislature doctrine is contrary to the language of the Constitution and Framers’ intent. It would confer on state legislators, the unreviewable power to redraw congressional districts as they see fit and appoint electors to cast votes on behalf of the state’s voters. It would unbind these appointees from rubber stamping the vote of the people and permit them to declare the loser the winner. Think about how that would have worked in 2020; we would still be dealing with the chaos known as the Trump administration and ruled by an autocrat.

The Constitution (Article I Section 4 Elections clause, for instance) grants some power to state legislatures to regulate elections, but that power is not exclusive and certainly not superintending. There is absolutely no support in the text of the Constitution for foreclosing independent judicial review of state legislatures’ redistricting efforts.

I realize this may be confusing, but here is the bottom line: North Carolina Republican legislators are seeking to permanently rig future elections in favor of their party. The fix is in! Whether Democrats or Republicans engage in that type of behavior, I want to live in a society where the system is free and fair and not rigged in favor of one side or the other. Imagine your favorite sports team going into the big game with absolutely no chance of winning—that’s what North Carolina Republicans are seeking with this notion of independent state legislature.

The Constitution provides for judicial review of the actions of both state and federal legislatures. The framers contemplated legislator partisan tendencies at both the state and federal levels. I won’t bore you or insult you with a history lesson, but, trust me, multiple unsuccessful attempts have been made to test the authority of the judicial branch to review and reign in the bad behavior of the legislative branch. Judicial review is a cornerstone of our democracy.

If all of this is true, why am I sounding the alarm? Well, the current 6-3 activist Supreme Court recently overturned a 50 year precedent and at least one of its members hinted that more activism is yet to come. Elections have consequences, ladies and gentlemen, and six of those consequences sit on the highest court in the land. If, indeed, our elections become ‘rigged’ in the future, don’t say I didn’t warn you.

Mark M. Bello is an attorney and award-winning author of the Zachary Blake Legal Thriller Series, ripped-from-the headlines, realistic fiction that speak truth to power and champion the rights of citizens in our justice system. These novels are dedicated to the social justice movement. They educate, spark discussion and inspire readers to action. One of these novels, Betrayal High, was written in response to school shootings. For more information, please visit www.markmbello.com. Mark also hosts the Justice Counts podcast with Lean to the Left editor & publisher Bob Gatty, presenting bi-weekly interviews focused on social justice.