Who's got the power?

Published October 6, 2022

By Tom Campbell

Sometimes simple explanations aren’t enough. That’s certainly the case with a North Carolina lawsuit the U.S. Supreme Court has agreed to consider. The case, Moore v. Harper, is asking the high court to affirm that the North Carolina legislature has absolute and irrefutable power for passing laws regarding elections, especially in setting district boundaries.

The case was initiated by legislative leaders angry that the North Carolina Supreme Court overturned gerrymandered districts on several occasions. The court said some districts were racially gerrymandered to limit minority voting power, while others were politically gerrymandered to guarantee one party would win. In both instances they required revising districts.

Not so, say legislative leaders. Both the US Constitution and the North Carolina Constitution clearly say the legislature has the power to draw district maps. Their current position is based on the “independent legislative theory,” a concept that came into vogue when George W. Bush was declared the presidential winner due to the Florida vote.

NC lawmakers have never denied they gerrymandered maps, defending it by saying Democrats did it for years when they ran things on Jones Street. They are correct, however that doesn’t make them right.

If the Supreme Court agrees that North Carolina courts can’t intervene in extreme cases of gerrymandering what will happen? Come 2031 when the next census requires new district maps be drawn, they’ll gerrymander them yet again. Maybe even worse. And the same will happen ad infinitum until Democrats regain power. Then the Dems will do the same to their party’s favor. It’s what happens when the inmates run the asylum. It’s not good government.

Through the years the U.S. Supreme Court has frequently shot down similar arguments made by legislative leaders, even refusing cases because they said the states should decide their own matters. But that was then, before the current crop of justices politicized rulings, essentially implying they will look more favorably to Republicans’ positions.

There are other implications. If legislators have total power over elections what’s to stop them from deciding which electors ultimately go vote in the Electoral College? We saw seven states in the 2020 elections toy with the idea of naming new electors, people who would name Donald Trump as their state’s winner regardless of the vote count. “On the basis of what they’ve said about the legitimacy of the 2020 election, you have to be genuinely concerned about what these people would do,” said former Attorney General Eric Holder.

Retired US 4th Circuit federal judge Michael Luttig, a Bush Republican appointee, concurred, “Trump’s and the Republicans’ far more ambitious objective is to execute successfully in 2024 the very same plan they failed in executing in 2020 and to overturn the 2024 election if Trump or his anointed successor loses again in the next quadrennial contest.”

Just after Labor Day the Conference of Chief Justices, a bipartisan group representing the chief justices of all 50 state Supreme Courts, filed an amicus brief, saying they have problems with NC House Speaker Moore’s “independent legislative theory.” They state that theory’s interpretation of the Constitution’s election clause is overly narrow and would negate the checks and balances of the three-branch system of government.

The Supreme Court’s Dobbs decision on abortion has further polarized the nation. A recent Gallup poll revealed 75 percent have no confidence in the highest court. It’s not the first time that the high court is out of step with the populous.

Franklin D. Roosevelt found himself facing an ultraconservative court that repeatedly struck down his New Deal legislation, even though the laws were passed by large majorities in congress. Roosevelt went on the offensive, proclaiming the court too partisan. He proposed expanding the number of justices. [There’s no law saying how many justices can sit on the court; in fact, the number has changed six times throughout our history before settling on nine in 1869.]

Backed by his overwhelming election victory margins and a Congress dominated by Democrats, Roosevelt proposed appointing one new justice for every current justice over 70 years old. The idea was gaining traction until one of the more moderate of conservative justices broke ranks, removing the conservative majority. The expansion proposal died.

Do we need similar action today? Let’s first take some baby steps, beginning with changing the selection and Senate confirmation process to make it less political and more informative. There has to be a better way than the circus we’ve recently witnessed. Another step would be fixed terms and/or age limits. Every president should have an opportunity to nominate a justice. Trump got three. North Carolina judges must retire at age 72, a limitation that ensures turnover. One of North Carolina’s current justices refused to stand for re-election because she would reach mandatory retirement shortly after the election. And regarding our state, electing judges is not the best method to ensure highly qualified, impartial judges on the bench.

Our founders were terrified of putting too much power in too few hands. They were right to be.

And we should be also. You and I should have the ultimate power.