Moore v. Harper: A Supreme Court decision that could reshape the American political landscape
2022 is proving to be a defining year for US Supreme Court decisions. Over the summer, the Court effectively overturned Roe v. Wade nationwide, leaving abortion legislation to the states. The decision upended decades of settled law and set a precedent for the court to overturn other seemingly settled issues.
One case under review by the Court this autumn and winter is Moore v. Harper. In this case, the Supreme Court will consider whether or not a state’s House of Representatives has ultimate authority over federal elections in their state, especially over the drawing of electoral districts. The case was brought to the Court by representatives of the North Carolina state legislature who are challenging the state court’s authority over elections.
The North Carolina state legislature’s argument is based on a theory known as the “independent state legislature (ISL) theory.” Proponents of the ISL theory suggest that state legislatures, particularly lower houses, are granted near absolute authority over federal elections in their states. This notion is based on two clauses of the US Constitution: the Elections Clause, which gives state legislatures wide-ranging powers over federal elections in their state, and the Presidential Electors Clause, which directs state legislatures to appoint electors to choose the president.
Based on the Court’s rulings in 2022, it seems possible that it will side with the North Carolina legislature’s reading of the Constitution, which empowers state legislatures to enact laws governing elections - such as the drawing of electoral districts.
The risk to elections
If the Supreme Court sides with the North Carolina legislators, electoral integrity in the United States could be called into question. For example, state legislatures would be able to gerrymander, that is, manipulate the boundaries of electoral districts to the benefit of one party or the other, without any checks over their ability to do so.
As a result, if North Carolina’s new electoral maps are accepted, it will hand the Republican Party 10 of North Carolina’s 14 congressional districts (71% of the state’s seats). The potential imbalance is illustrated by the 2020 presidential election: 49.93% voted for Trump, while 48.59% voted for Biden in 2020. Similar figures were shown in the 2022 midterms: 52% of voters voted Republican and 48% Democrat in the House elections, while the state Senate election resulted in 50% of voters voting Republican and 47% Democrat.
FiveThirtyEight, a news outlet specialising in opinion polls, illustrated how gerrymandering can be used to shape national elections. Using Michigan as an example, the competition for seats in the House of Representatives is as follows: 4 democrats, 6 Republicans, and 4 competitive seats, before redrawing electoral maps. However, the state legislature is controlled by the Republican Party. Therefore, using the precedent set by North Carolina, legislators could return a map with 10 Republican seats to 4 for the Democrats (Michigan voted 50.62% - 47.84% for Biden in 2020 and 47.25% - 47.03% for Trump in 2016). One caveat to this example, however, is the power of the Michigan Election Commission, which currently draws district boundaries. This raises the question of whether, in a post-Moore world where the Supreme Court sides with state legislatures, election commissions would retain their authority or whether legislatures would take it away from them?
A shift in the balance of the House of Representatives could have an impact, however remote, on presidential elections. In 1824, Andrew Jackson won a plurality of the popular vote and the Electoral College. However, as no candidate won an outright majority, the US House of Representatives decided the outcome, resulting in a victory for John Quincy Adams (he won 13 state delegations, Jackson won 7 and William Crawford won 4). Adams was preferred to Jackson mainly because of the successful politicking of his ally Henry Clay. Clay held considerable influence in Congress as Speaker of the House and used it to lobby for the election of Adams at the expense of Jackson who was more popular among the electorate. Clay was eventually rewarded with a position as Secretary of State.
Something similar could happen in the future. One scenario is that the Republican ticket could split in 2024, as Trump has announced his intentions to run, but some Republicans have signalled that they want to move forward with a different candidate, possibly Ron Desantis. In theory, Desantis, Trump, and Biden could all win enough electoral votes that none of them could win a majority. In that case, the House of Representatives, which leans Republican in a majority of states, would choose its preferred candidate. Consequently, state delegations could choose the least popular candidate, causing controversy and contributing to further democratic backsliding.
The risk of violence
Political violence can follow elections for a variety of reasons, such as unfair elections (perceived or real), legislative unresponsiveness, corruption, or any other element that may challenge the legitimacy of the elected body. Partisans, feeling hopeless, then react by going outside the established norms to achieve their political objectives.
An entrenched, unresponsive, and unrepresentative government can be a trigger for political violence. By allowing states to gerrymander their electoral districts, a party can entrench itself in power and cause a section of the population to lose the opportunity to change existing policies. An entrenched party can fall victim to violence if it adopts unpopular policies that are insensitive to the wishes of its citizens or fails to act appropriately when a crisis hits. In the mildest cases, this may take the form of protests, while in the most extreme cases, it could involve rioting, insurrections, and rebellions.
There are concerning signs that a large group of Americans believe that elections are unfair. Prior to the 2020 presidential election, 30% of Republican voters, 13% of Democrats, and 26% of all voters thought that votes would not be counted fairly. Since the 2020 election, the perception of unfairness has only increased, with 28% of voters saying they had little to no confidence in the accuracy of the 2022 midterm elections before they happened.
In 2022, a UC Davis research asked Americans their views on the use of violence for political purposes, and found that one in five respondents thought that political violence is justified, at least in some circumstances. 3%, the equivalent of 7 million Americans, responded that political violence is usually or always justified. It was also found that 7.1% of people (about 18 million people) would be willing to kill a person to advance an important political goal. Similar results have been reported in other studies, confirming that a sizable portion of Americans, at least on paper, would be willing to commit acts of violence in order to advance their preferred policies and candidates.
The January 6 insurrection is the manifestation of the shift in American politics towards violence. But it is not an outlier. Over the last decade, politically motivated violence, also viewed as ideologically motivated terrorism, has increased. Much of this increase in violence can be explained by the growing hostility of partisans to a party they see as a threat to their way of life.
Yet, violence is unlikely to lead to regime change. The vast majority of Americans seem determined to defend democracy and attempt to reform the government institutions through constitutional means. However, if the Supreme Court sides with the North Carolina legislature, political violence could become more common, with more small-scale events rather than large-scale acts of violence. Only time will tell, as the 2022 midterms, as contentious as they were, saw little to no violence. The real test will come in the 2024 presidential election, depending on who runs, as the last presidential election resulted in an insurrection at the US Capitol.