Moore v. Harper Could Have “Devastating” Consequences

SARA SIDNER, HOST: Frank Tsai and Peter Frankopan, thank you so much. It’s interesting to hear you say the word, a watershed moment, that is significant. I appreciate you coming on the program. Now, to the United States where the house, yesterday, passed a bill to protect same-sex and interracial marriage. It is legislation that gained momentum after the Supreme Court’s landmark overturning of Roe versus Wade back in June. And now, that court is hearing another potentially transformative case. This time, one that could change the way American elections are held. It centers on North Carolina’s congressional map and the authority of state legislatures to control it. But our next guest says that the case could have consequences far beyond just one state. David Daley is the author “Unrigged: How Americans are Battling Back to Save Democracy” and an expert on state election reform. He speaks with our Hari Sreenivasan.

(BEGIN VIDEO CLIP)

HARI SREENIVASAN, CORRESPONDENT: Thanks, Sara. David Daley, thanks for joining us. For people who are watching, especially overseas, let’s get a little bit of background on what happened in front of the Supreme Court. What this case is about before we, kind of, talk about a little bit of the implications. So, what was it that the Supreme Court heard a couple days ago?

DAVID DALEY, AUTHOR, “UNRIGGED: HOW AMERICANS ARE BATTLING BACK TO SAVE DEMOCRACY”: It’s really, really interesting case. It is called More V. Harper. And it arises out of a gerrymandered congressional map that the North Carolina State Supreme Court tossed aside as an unconstitutional partisan gerrymander because as it was drawn by Republican state legislatures there, it gave the GOP, 10 of 14 seats in what is effectively a 50/50 purple state. What Republicans, however, did was they appealed this using a novel legal theory called the Independent State Legislature Theory. They have gotten it now all the way to the U.S. Supreme Court. What they are asserting, in this case, is that under the federal constitution in the elections clause, the word legislature means legislature and only the legislature. So, that the state Supreme Court in North Carolina and indeed the state constitution would have no power over the legislature in their ability to make rules that administer the time, place, and manner of federal elections. If this novel theory is upheld by the U.S. Supreme Court, it could really dramatically change where power rests over federal elections.

SREENIVASAN: So, the Republicans in this case are arguing in North Carolina that their own state Supreme Court should not have the power to correct something that the state legislature does, or this isn’t a state versus federal, this is the — kind of, a state legislature versus Supreme Court?

DALEY: In many ways, it is. The state Supreme Court rained in Republicans in the state legislature. They said that using a clause in North Carolina state constitution that said all elections must be free and fair. They said that those gerrymandered maps were neither free nor fair. That they fell far short of that constitutional standard. What Republicans are saying is that the state Supreme Court should have no role in this at all. They are lining up a situation in which absolute unfettered control over all election issues would lie in state legislatures. State legislatures have been so wildly gerrymandered, especially, in North Carolina that this would place maps and many other electoral rules beyond any checks and balances and also the ballot box.

SREENIVASAN: If it goes in the way of the Republicans who were asking for this, what is the consequence to every other state?

DALEY: The consequences are huge. And potentially unimaginable for the nature and future of our democracy. If state legislatures are allowed to set all of these rules without any check or balance on them, not a governor’s veto. Not the state constitution. Not a state Supreme Court. They would be free to change everything on their own from electoral maps, to rules around absentee or mail-in voting. You could potentially see rules changed governing how electors are sent to the electoral college. Much of what Donald Trump was arguing on January 6th came down to the Independent State Legislature Theory. And that these state legislatures had the power to send alternate slates of electors to Washington to vote for him, right?

SREENIVASAN: Yes.

DALEY: Because they were effectively to insurrections on January 6th. One of them, the MAGA assault on the Capitol. But the other one was this highly technical, almost bloodless, other legalistic challenge that his counsel John Eastman was making. And it’s very much based on the Independent State Legislature Theory. If this is endorsed by the U.S. Supreme Court, those who would look to overturn future elections like what we saw in the weeks after the 2020 election would be in a stronger and better position to get away with it next time.

SREENIVASAN: If this theory, the Independent State Legislature Theory, had been in effect at the 2020 elections, what would have happened?

DALEY: I think we would have seen pure constitutional chaos. I think you would have seen lawmakers in Georgia, Pennsylvania, and Arizona, the ones who we all watched as they behaved recklessly and embraced Donald Trump’s big lie, and oftentimes sent envelopes to the national archives with competing slates of electors. We would have watched all of this play out in federal courts. And it would have been a brand-new situation in many ways, the guardrails would have been runoff. The rules would have been completely unclear. And much would have been left to U.S. Supreme Court to decide and interpret. And what we’ve seen, of course, is that that court has become much more partisan. There were only about 75,000 votes, effectively, that separated Joe Biden and Donald Trump in the 2020 election. Biden wins the popular vote, yes, by 7 million. But his electoral college victory is super narrow when you look at the margins in Georgia, Wisconsin, Arizona, and a single congressional district in Nebraska. If those electors had been challenged by Republican-controlled, oftentimes Republican gerrymandered legislatures in those states, and alternate electors had been sent to Washington, we saw on the hours after the January 6th insurrection that there was a majority of the U.S. House Republican caucus that was willing to set aside free and fair election results from states like Pennsylvania and Arizona. This could’ve been thrown into wild constitutional chaos. And it really threatens the foundation of one person, one vote, and the will of the people being heard.

SREENIVASAN: So, on the surface, it looks like this is a tension between legislatures and Supreme Courts. But really, what you’re saying is that it’s also about the power to draw maps in a way where you can pretty much secure the outcome of any election before it’s even held —

DALEY: That’s right.

SREENIVASAN: — or certainly after.

DALEY: That’s right. This is a case about raw political power and who is able to execute it. It might be dressed up in constitutional trapping and originalist theories, but this is really a case about a North Carolina legislature that is very, very angry that the state Supreme Court had the nerve to overturn maps that they drew to entrench themselves in power. North Carolina State Supreme Court stood up and said, these maps are neither free nor fair. You must try again. Republicans in North Carolina in the legislature said, you should not even have the power to tell us what to do. If we want to entrench ourselves in office, we will. And now the question is whether the U.S. Supreme Court will let them and every other state legislature around the country get away with it and have this kind of unfettered power in the future that we know that they cannot be trusted with.

SREENIVASAN: So, give me an idea here. If the decision goes one-way versus the other, the impact on the 2024 election.

DALEY: You would see immediate and dramatic consequences. First, I mean, North Carolina is working on a 77 congressional map right now. If the independent state legislator theory is adopted, you might see many states rush to redraw legislative maps, which could reopen the battle for Congress. If state legislatures are free to draw maps without any constraints of state Supreme Courts, you could see New York, you could see, you know, many, many states jump back into this. If the most maximal endorsement of independent state legislature theory is embraced, it could lead to the unconstitutionality of independent redistricting commissions around the country. It could dramatically change the way that people vote by mail, whether absentee balloting is allowed. And I think, just as importantly, it would remove the ability of voters and citizens in these states to challenge some of these really new draconian bills and state legislatures that make it much harder for people to vote. So, a package of voter suppression bills, for example, in the State of Georgia that, you know, currently is being litigated, the state Supreme Court would have no power there to rule on a case like that. And what we have seen from the U.S. Supreme Court on voting rights over the course of the last decade has been that they are very reluctant to weigh in on the side of voters and against the power of state legislators to do what they will. And then, if we get to a case where elections are contested, where estate – – slates of electors are contested in 2024 in some of these most competitive states, places like Arizona and Georgia and Wisconsin and Pennsylvania, what you could see is pure constitutional chaos. The blast radius from this ruling could be large and consequential and devastating.

SREENIVASAN: What was also interesting was the folks lined up on the other side. And somewhat strange bed fellows in the Supreme Court cases often find that, but you had the cofounder of the Federalist Society, you know, arch-conservatives from the Reagan administration, from both Bush administrations. And you also had 50, all 50 state Supreme Courts were also writing on the opposite side of this, along with lawyers who would otherwise be considered, you know, liberals arguing against this. It was interesting from king of alignment on how many forces say that this case should go a peculiar way.

DALEY: I think that there is broad recognition by both, as you say, some of the founders of the Federalist Society, Judge Michael Luttig, who was known as one of the most conservative judges in America, joining common cause and Neal Katyal as a litigator. In this case, a real understanding that this has deep and dangerous, dramatic consequences for the future of American democracy. There is an awful lot at stake here. You saw Republicans, Democrats, liberals, conservatives, chief justices from all 50 states coming together to say that there is no basis for this theory that it is not effectively grounded in our constitution, in our law, in our political tradition or indeed, really even in reality.

SREENIVASAN: You had written in your book “Unrigged” about the efforts that were happening to try to fix the gerrymandering problems. And tell me a little bit about what’s going on right now in Michigan and whether that could be one of the potential solutions to give individual voters a little bit more say in, well, ironically, how they elect the people that they actually choose.

DALEY: You’re absolutely right. In Michigan, in 2018, what you saw was citizens of the state from across the political spectrum came together and used the constitutional amendment process there, a ballot initiative, to create an independent redistricting commission. Michigan had been one of the most wildly gerrymandered states in the nation for, you know, many decades. Republicans there were the culprits. And Democrats were effectively unable to win control of the state legislature or even the congressional delegation there, even in years in which they would win hundreds of thousands of more votes statewide. And voters got really tired of this, right? When you have gerrymandered legislatures, you end up with policy that is much further extreme than voters of the state want. But voters find it almost impossible to do anything about it at the ballot box. So, the state came together and acted in an independent commission this year. You had a nearly evenly divided Michigan congressional delegation that really closely reflected the will of the people. And also, Michigan’s House and Senate flip to the Democrats for the first time in many decades. And it’s not Democrats ought to have power in the State of Michigan, it’s the party that wins the most votes, the will of the people, the ability of voters to turn out their leaders if they do not want them in office rather than seeing them entrenched by lines that they themselves drew. So, the process in Michigan was a wild success and it actually gave voters in Michigan back their government. And this is one of the dangers of this case, because if the independent state legislature theory is embraced, it could call into question the future of independent commissions around the country. And it could give that power back to lawmakers who have proven that they can’t be trusted with it, or that they won’t use it irresponsibly for their own partisan and political nature. We need state Supreme Courts to have the power to step in and interpret state constitutions and protect voters, and the founders knew this and intended it. And lawmakers around the country, in the days after the 2020 election, but also those who have drawn these wildly mint gerrymandered maps on both sides of the political spectrum —

SREENIVASAN: Yes.

DALEY: — show us every day why gubernatorial vetoes and the state Supreme Courts have a really important role to play here.

SREENIVASAN: David Daley, thanks so much for joining us.

DALEY: Anytime. Thank you.