I'm the Governor of North Carolina and this fringe claim before the Supreme Court could upend democracy
Published December 6, 2022
By Roy Cooper
Editor's note: This op-ed column was first published in the New York Times, Tuesday, December 6th
Over the past six months, the United States Supreme Court has handed down one misguided ruling after another, stripping Americans of the constitutional right to an abortion, curtailing the regulation of guns and industrial emissions, and muddying the divide between church and state. The people have protested. They’ve organized. And in 2022, they voted.
In Dobbs v. Jackson Women’s Health Organization, the June decision on abortion, the majority wrote that “women are not without electoral or political power.” That’s one thing they got right, and Republicans found that out the hard way in the November midterm elections that they expected to win big. Now, however, the very ability to exercise electoral and political power at the ballot box is hanging in the balance in a case the court is scheduled to hear on Wednesday.
Moore v. Harper is a case from North Carolina that state and national Republicans are using to push an extreme legal premise known as the independent state legislature theory. While the United States Constitution delegates the authority to administer federal elections to the states, with Congress able to supersede those state decisions, proponents of this theory argue that state legislatures are vested with the exclusive power to run those elections. This view would leave no room for oversight by state courts and put the ability of governors to veto election-related legislation in doubt.
The court’s decision on this alarming argument could fundamentally reshape American democracy. Four justices have suggested that they are sympathetic to the theory. If the court endorses this doctrine, it would give state legislatures sole power over voting laws, congressional redistricting and potentially even the selection of presidential electors and the proper certification of election winners.
Indeed, the North Carolina Supreme Court, in a decision this year, said the theory that state courts are barred from reviewing a congressional redistricting plan was “repugnant to the sovereignty of states, the authority of state constitutions and the independence of state courts, and would produce absurd and dangerous consequences.”
You can look to North Carolina to see the potential for dire consequences. In 2010, Republicans took over the state legislature after the midterm elections. Since then, North Carolina has been ground zero for Republican attempts to manipulate elections. As the state’s attorney general and now governor since 2017, I’ve dealt with Republican legislative leaders as they advanced one scheme after another to manipulate elections while making it harder for populations they have targeted to vote.
These schemes robbed voters from the start to the end of an election: a voter ID requirement so strict that a college ID from the University of North Carolina isn’t good enough. No same-day registration during early voting. No provisional ballots for voters who show up at the wrong precinct. Shorter early voting periods eliminated voting the Sunday before Election Day, a day when African American churches hold popular “souls to the polls” events.
Fortunately, these measures were stopped in 2016 by the U.S. Court of Appeals for the Fourth Circuit, which described them as targeting African Americans “with almost surgical precision.”
Republicans in the legislature have also gerrymandered districts in diabolical ways. In 2016, state Republicans drew a congressional redistricting map that favored Republicans 10 to 3. They did so, the Republican chairman of a legislative redistricting committee explained, “because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”
North Carolinians have relied on courts and my veto power as governor to foil many of these schemes. In 2022 a successful lawsuit in state court challenging a 2021 gerrymandered congressional map resulted in fair districts, splitting the state’s 14 districts (the state gained a district after the 2020 census) so that Democrats and Republicans each won seven seats in November’s elections. It seemed only right, given the nearly even divide between Democratic and Republican votes statewide. Republican efforts to avoid this result led to the Moore v. Harper appeal now before the Supreme Court.
As recently as 2019, Chief Justice John Roberts wrote in a majority opinion on partisan gerrymandering claims in Maryland and North Carolina that state courts were an appropriate venue to hear such cases but that those claims were political issues beyond the jurisdiction of the federal courts. Retreating from that position on the role of state courts would be a shocking leap backward that would undermine the checks and balances established in state constitutions across the country.
Republican leaders in the North Carolina legislature have shown us how the election process can be manipulated for partisan gain. And that’s what you can expect to see from state legislatures across the country if the court reverses course in this case.
Our democracy is a fragile ecosystem that requires checks and balances to survive. Giving state legislatures unfettered control over federal elections is not only a bad idea but also a blatant misreading of the Constitution. Don’t let the past decade of North Carolina voting law battles become a glimpse into the nation’s future.
Roy Cooper, a Democrat, has been the governor of North Carolina since 2017. He was previously elected to four terms as attorney general.