Free and fair voting — or ‘rigging’ elections? Supreme Court will decide

The Supreme Court heard oral argument earlier this month in Moore v. Harper, a case that is critical to our democracy and the control of our House of Representatives. You would not have known it from the questions the Republican-appointed justices asked.

The issue before the court is simple. North Carolina’s Republican legislature enacted an extraordinarily egregious gerrymander of the state’s 14 congressional districts. By any measure it is an affront to democracy. One expert explained it would ensure that if Republicans receive 50 percent of the vote they would win at least 10 — or 71 percent — of the seats. Another expert showed that only .01 percent of possible maps generated by his algorithm would produce a disparity that extreme. The North Carolina Supreme Court had already found “beyond a reasonable doubt” that the gerrymander violates numerous provisions of the state’s constitution, including the fundamental right of North Carolina citizens to free elections and “substantially equal voting power.”

The speaker of North Carolina’s legislature and other legislative leaders appealed to the U.S. Supreme Court now deciding the case. They argued the statement in the Elections Clause of the U.S. constitution that “The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature,” gives them exclusive authority to draw congressional districts without regard to the state constitution, and the state Supreme Court has no authority to overrule their decisions.

It was troubling that the U.S. Supreme Court even agreed to hear the appeal. The gerrymander itself is indefensible. And there is a long-established principle that federal courts do not question a state court’s interpretation of the state’s own constitution. The legislators’ lawyer himself said, “We’re not asking this court to second-guess or reassess” the North Carolina Supreme Court’s ruling on the state’s constitution. As for their Elections Clause argument, in the more than 230 years since that clause was adopted, the Supreme Court has never asserted that it authorizes state legislatures to draw congressional districts that violate the state’s constitution or are not subject to judicial review.

But in the three-hour oral argument, not a single Republican-appointed justice expressed any concern about the gerrymander. Quite the contrary, they appeared to normalize it. Justice Samuel Alito called it a “political controversy.” Justice Neil Gorsuch remarked, “So the political saliency point, I think, you know, depends on whose ox is being gored at what particular time” — as if an extreme gerrymander is not inconsistent with our democracy regardless of whose ox is gored.

These justices’ only concern seemed to be whether the North Carolina Supreme Court should be prevented from protecting our democratic system of government by requiring that congressional seats be fairly apportioned. For example, Chief Justice John Roberts asked, “Do you think the phrase ‘fair and free elections’” provides an adequate standard for the North Carolina court to apply — even though no one could argue the gerrymander here is consistent with any conceivable notion of “fair and free” elections.

Alito remarked that the North Carolina Supreme Court is elected and its members are “permitted by state law to campaign on the issue of districting” — without any explanation of how that could possibly change the fact that the gerrymander here is untenable. (If Alito’s point was that the election of the North Carolina court somehow undermines its integrity or legitimacy — that line of attack would be hard to square with his insistence to a Heritage Foundation audience two months ago that it “crosses an important line” when someone “in a position of authority” questions the legitimacy or integrity of the U.S. Supreme Court.)

Gorsuch commented, “About five, seven years ago, [the North Carolina Supreme Court] refused a political gerrymandering claim.” That, too, would not make its current ruling incorrect. (And if Gorsuch was suggesting that the North Carolina court was bound to follow that precedent, that would be utterly inconsistent with his position in the Dobbs ruling, six months ago, that he and the Supreme Court were not bound by 50 years of unbroken Supreme Court precedents recognizing the constitutional right to abortion, including a decision just two years ago.)

Justice Amy Coney Barrett questioned whether the decision of the North Carolina Supreme Court should stand if it was not “acting as a court but … more as a legislature.” Yet, there is no need to reach that question because the North Carolina court did exactly what a court should do to protect our democracy.

Alito even asked “would anyone have understood … in 1776” the analytical tests and methods the North Carolina court considered in concluding that the legislature’s gerrymandered map violates the state constitution — without explaining how that could conceivably matter.

This case is vitally important because it goes to the heart of our democracy, not just in North Carolina but throughout the country. Three years ago, in Rucho v. Common Cause, the then five Republican-appointed U.S. Supreme Court justices on the bench at the time acknowledged that partisan gerrymandering is “incompatible with democratic principles,” but ruled over the dissent of the other four Justices that the court itself cannot prevent it. If the court now stops state supreme courts from preventing it as well, that will allow (or even encourage) a race to the bottom in many if not most of our 50 state legislatures that will undermine our democracy. It may hand control over our House of Representatives, which is central to our democratic system of government, to the party that engages in the most extreme gerrymanders, and it would reduce or eliminate the influence of those who will not, do not or cannot reciprocate.

If there is one lesson all of us (including the Supreme Court) should have learned over the last few years, and particularly on Jan. 6, 2021, it is that we cannot be complacent about our democracy. The Supreme Court made an enormous mistake in Rucho when it said it would not prevent blatant partisan gerrymandering — a practice retired Justice Anthony Kennedy aptly noted has been described as “rigging elections.” The court should take this opportunity to reverse Rucho. The court has no task or responsibility that is more important than protecting our democracy and the fundamental right of all Americans to participate equally.

Michael J. Dell is a New York lawyer who litigates and writes about constitutional issues.