McKissick Says Moore v. Harper Too Important to Ignore

By Cash Michaels –

The first vice chairman of the North Carolina Democrat Party, former state Senator Floyd McKissick Jr., says Moore v. Harper, the pivotal North Carolina case argued before the US Supreme Court last week, “poses an existential threat to our democracy.”

The question at hand: Does the NC Supreme Court have the legal authority to strike down the state legislature’s “illegally gerrymandered congressional map for violating the North Carolina Constitution?”

The Theory

The state’s Republican legislative leadership says no, that when it comes to federal elections, neither the state Constitution nor the state Supreme Court should have any power over the state legislature.

This is called the “Independent State Legislature theory,” which some Republicans and conservatives argue can be found in the US Constitution. Many legal experts—both conservative and liberal—have called the “theory” a bad misinterpretation of a passage in the US Constitution, which if allowed by the court could empower state lawmakers across the nation to actually rig elections, illegally draw unconstitutional voting districts, and effectively stay in power without accountability.

And voters would have no legal recourse to stop them.

Republicans are the majority in over 54% of the nation’s state legislatures, Democrats in over 44%.

The NC Case

In 2021, the GOP-led NC legislature passed an extremely partisan congressional voting map that gave the state ten Republican-leaning congressional districts, and only four that leaned Democratic. Voters sued in state court, contending that its gerrymandered map violated North Carolina’s “free elections” clause.

Last February, the Democratic-majority state Supreme Court agreed that the Republican-led legislature had created an illegal, extremely partisan congressional map and struck it down. Undeterred, Republican lawmakers drew up a second partisan congressional map, forcing the state Supreme Court to order a special master to come in and draw a more constitutional map for the 2022 midterm elections.

That’s when Republican House Speaker Tim Moore petitioned the US Supreme Court to step in and counter the state Supreme Court and reinstate the legislature’s voting map. At first, the Moore petition was rejected, but four of the conservative justices urged Moore to petition again, and in June, the case was accepted.

And that’s how North Carolina’s “independent state legislature theory” came before the US Supreme Court last week.

What ISL Would Do

In his op-ed to the Raleigh News & Observer, former NC Sen. McKissick recalled his days in the legislature, sitting on the Redistricting Committee, where Republicans would draw partisan maps that “…split communities and neighborhoods down the middle to dilute the democratic process and disenfranchise voters—disproportionately impacting communities of color.”

“With Moore v. Harper, they are taking matters to the brink by appealing to a Republican-dominated Supreme Court in hopes it will put partisanship before people and support their fringe independent legislature doctrine,” McKissick opined.

“Republicans’ willingness to cast aside decades of precedent and our very Constitution for partisan gain is alarming, and North Carolinians should pay attention. Our democracy is fragile. We must fight to protect it.” He added, “Republicans are merely interpreting the Constitution to fit their needs.”

SCOTUS Split

For more than three hours on Dec. 7, the nine-member court heard arguments from both sides of the issue. According to observers, even some of the high court’s conservative justices—Brett Kavanaugh and Amy Comey Barrett—realized how extreme the independent state legislature theory was, and how it could negatively impact future federal elections, starting in 2024.

Arch-conservative justices Clarence Thomas, Neal Gorsuch, and Samuel Alito had no problem with the “theory,” and seemed predisposed to rule for it.

The court’s newest associate justice, Ketanji Brown Jackson, seemed to indicate that she will join her liberal colleagues Elena Kagan and Sonia Sotomayor in her line of questioning, noting that the nation’s founders “…sought to constrain the power of state legislatures.”

A decision in Moore v. Harper is expected in July 2023.