by Dr. Erin H. Moore, Executive Director
One of the hallmarks of American democracy is the ability of average citizens to determine the course of power through our elected democracy. Who has power, how it is used, and who benefits from that power. It is government of the people, by the people, for the people.
We have a system where power is held in check. The triumvirate structure we have created – an executive, a legislative body, and a court system, all work in conjunction to create a system whereby laws are passed and competing political parties debate through policy initiatives how this country will be governed. Regardless of what we think of government as a whole, our elected officials determine the structure of our school systems and what child attends what schools, it determines the rate we pay for our utilities, it determines our rate of taxes and what those taxes will be used for.
Perhaps just as importantly, it is government that outlines the parameters for how we seek justice. It determines if those that do harm to our communities will be held accountable, whether they are rogue police officers or corporations that pollute our backyards. It decides if we can take our cases to the courts, seek redress, and for how much. It allows us to advocate for laws that alter systems of oppression and create a more just and equitable society. While many of us may want to be disengaged from the political process, the role of government and elected officials and the impact they have on our lives cannot be underestimated.
The quest for power is never ending and those who seek it will never cease to come up with new ways to secure and hold onto power, especially if they don’t have to share that power. What is happening before the Supreme Court in its hearing of the oral arguments in the case of Moore v Harper is an example of a quest for never ending power.
In Moore v. Harper, the Republican legislature in North Carolina is attempting to maintain the recently redrawn gerrymandered districts in place, and thus entrench a system where they maintain political power over the Democratic Party. These districts were struck down by the North Carolina Supreme Court, but the Republican legislature is challenging this rebuttal using an obscure provision known as the Independent State Legislature (ISL) theory. The US constitution gives state legislatures the right to determine the structure of elections in each state, and Republicans in the NC General Assembly have interpreted this to mean that they, and they alone, have the sole right to determine how elections are run in the state. They believe that the state Supreme Court has no authority to override their decisions regarding elections. They believe there should be no checks and balances on their power.
Their position rests on a narrow interpretation of the word “legislature” as those who are allowed to make laws. But the Governor and the state Supreme Court also have a hand in establishing law. The Governor has the power of the veto and the implementation of executive orders. The state Supreme Court can uphold or overturn laws passed by the state, and thereby, their final ruling establishes what is legal. All three branches of government have a role to play in establishing what is the law in North Carolina.
What is dangerous about this attempt is that it will create a system of unchecked power by the NC General Assembly and set a precedent for other states to follow. The state legislature can eliminate early voting, purge voting records, limit the time that polls are open on election day, eliminate polling locations in communities of color, send their own slate of electors to the electoral college, regardless of the outcome of how the people vote, and redraw voting districts in such a way that only one political party has power. And there would be nothing that the Governor or state Supreme Court could do about it. Our ability to seek redress, our ability to seek justice, our ability to have a government that is responsive to our needs, would be forever altered. Our understanding of how a democratic system of government is supposed to function would cease to exist.
The question is – what can be done if there is a negative ruling from the Supreme Court and the ISL is allowed to stand? At this point, we need to think about the structure and function of the Supreme Court. The Roberts Court seems to be on a slow and steady march toward the denial of our basic rights and fundamental liberties. Its current rulings are biased and seem to be politically driven. The two-hundred-year tradition of following legal precedent has been thrown out the window. There are currently no checks on the Supreme Court. If an adverse ruling in Moore v. Harper is revealed next summer when the decision comes down, then as a country that has operated under a system of checks and balances since our inception, we have no choice but to seriously consider implementing term limits as a check on the power of the Supreme Court. With a runaway Supreme Court and unchecked power in state legislatures across this country, the democracy we know and love will cease to exist.