The U.S. Supreme Court finally heard oral arguments in Moore v. Harper last week. The case involves a mundane constitutional issue concerning the definition of “legislature” as used in the elections clause. Yet it has produced panic among Democrats and a torrent of portentous predictions about the death of democracy from various leftist law professors. In the Washington Post, for example, Harvard University’s Noah Feldman expressed alarm that the court took up the “insane” case at all.
Is Moore v. Harper really insane? Of course not. The case arose early this year when the North Carolina Supreme Court struck down a redistricting map produced by the state Legislature, then replaced it with a redistricting scheme of its own. The North Carolina General Assembly petitioned SCOTUS for relief on the grounds that this action violated Article I, Section 4 of the U.S. Constitution. Moreover, the petitioners are on solid legal ground, as constitutional lawyers David Rivkin Jr. and Andrew Grossman explain in the Wall Street Journal:
The Elections Clause directs “the legislature” to regulate congressional elections, which includes drawing district maps. State courts aren’t part of the legislative process, and thus the North Carolina Supreme Court was obligated to uphold the General Assembly’s map.… State courts have the power to interpret election regulations, but they can’t override the legislature’s handiwork unless it conflicts with the U.S. Constitution or a statute enacted by Congress.
Few readers will find this argument frightening, yet human rights lawyer Steven Donziger insists in the Guardian that it is “terrifying.” To appreciate why this case is so scary to the Democrats and their lawyers, you have to consider the outsized role litigation plays in their approach to elections. Convincing state courts to change election laws — whether they involve district maps, statutory deadlines, or signature rules for mail-in ballots — is as important to Democratic strategy as are voter registration drives and turnout operations.
If the Supreme Court rules in favor of the North Carolina General Assembly, Democrats will be forced to obey election statutes as written by state legislatures. This would seriously limit their ability to litigate their way to victory in the 2024 presidential election. Biden’s 2020 Electoral College victory was only possible because controversial election attorney Marc Elias convinced dozens of state courts to exceed their jurisdictions and change election laws governing mail-in ballots. It will come as no surprise that Elias considers Moore v. Harperdangerous:
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