July 29, 2022
Moore v Harper.
A case that could seriously change the way elections are handled across the country. But how exactly? I’m about to tell you. This is a deep dive and it is really really important. So if you don’t have time right now, I highly encourage you to favorite this and watch it in full when you have a few minutes.
The bottom line, this case is about independent state legislature theory and gerrymandering. Keep watching till the end because I’m going to gerrymander a map so you actually see how it works.
But first here’s what’s going on. The US Supreme Court announced they will take up a case in the next term out of North Carolina called Moore vs Harper. The short short version of the case is the North Carolina Supreme Court threw out a newly redrawn district map the court found to be extremely gerrymandered and therefore unlawful under the North Carolina constitution. North Carolina’s lawmakers disagree and appealed to the US Supreme Court and the justices agreed to hear the case. The North Carolina lawmakers who are bringing the case subscribe to the independent state legislature theory and really, that’s what the justices will be deciding on. If the justices side with the lawmakers – it would give state legislatures full control to conduct state elections and create election rules with no check on that power from anyone including the governor or the courts. In the most extreme case, a state legislature unhappy with the outcome of an election could simply declare it tainted, nullify the results and award state electors to whichever candidate it wanted.
I know that all sounds pretty scary and there are some terms in there that may be confusing. So I’m going to explain all of it right now.
First let’s discuss this controversial idea called independent state theory. It’s actually rooted in the constitution in two separate places. In article one section four, the constitutions says:
The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the congress may at any time by law make or alter such regulations, except as to the places of chusing senators.
*the word “chusing” is spelled that way in the Constitution.
And article two section one says
Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the congress
The independent state theory latches on to the number of times the constitution mentions the word “legislature.” Those in favor of the theory believe the constitution doesn’t use the word “court” it doesn’t use the word “governor” when it comes to elections, therefore those who subscribe to the theory believe neither should have any say in the legislature’s decision.
The other word in there that you may be confused about is the word gerrymander. In this country every 10 years after a census — congressional district maps are redrawn by state legislatures, governors or local commissions to better represent the population. Because we just had a census in 2020, those maps have just recently been redrawn. But those maps can really be manipulated for one party’s political gain over another. That process is called gerrymandering and according the supreme court– it’s technically legal.
I’m going to show you how it works.
Let’s take an imaginary state.
In our imaginary state we have the imaginary green party and the orange party. And for arguments sake let’s say the people in the orange party generally live in the same areas and the people in the green party generally live in the same areas. Now according to our founding fathers representation should be based on population and should be proportional.
like this. This would be considered a fair redistricting. You can see proportionately each party is fairly represented based on population. The orange party gets three representatives. Though the green party has fewer members they still get two representatives. But do you want to see how I can gerrymander the crap out of this map?
Boom like this. Now you can see each of the districts if I draw the map horizontally puts the orange party in the full majority every time. They get all the representatives. The green party gets zero. Wanna see how I can do it for green?
Told ya. If I draw the district lines randomly like this I can get green to have more representatives than orange ever though orange technically has more people. But you’re probably thinking – this doesn’t happen in real life.
You’re damn right it does. These are actual district lines on district maps from 2010 to 2020.
While all of this is happening I told you in this video last week, the senate has come up with a bipartisan election reform bill that would address some of these issues. But it has not been put up for a vote yet. Whatever the court decides the US constitution also requires state legislatures to comply with anti-discrimination law, the bill of rights, the 14th amendment and all the other federal laws that guarantee voting rights and prohibit any illegal vote counting. The Supreme Court will hear Moore vs Harper in the fall.
