After fending off the Republican-dominated state legislature for more than a decade, voting rights advocates are arguing their case before the U.S. Supreme Court Wednesday.
Moore v. Harper, a North Carolina case that was appealed to the nation’s highest court earlier this year, is the culmination of a more-than-10-year battle over voting rights, particularly the rights of Black and brown voters. It’s a battle to make your vote count.
Back in 2011, when Republicans took control of the state legislature, they immediately began the process of gerrymandering—drawing the boundaries of electoral districts in favor of their own political party—so they could stay in power.
“They drew districts that packed as many Black voters into as few districts as possible, limiting their political power,” says Allison Riggs, co–executive director and chief counsel for voting rights at the Southern Coalition for Social Justice (SCSJ). Riggs is one of the lawyers arguing in favor of voters before the Supreme Court this week.
“[The legislature was] drawing these district lines based on race and then also creating partisan gerrymanders—districts that would not be responsive to the political will of North Carolina voters,” Riggs says.
The unfair voting map North Carolina Republicans approved was just the first law of many that would be challenged in court. Over the next 10 years, Republicans continued to try to pass racial and partisan gerrymandering plans, most of which were struck down after challenges from SCSJ and other voting rights groups.
In 2013, North Carolina legislators passed a law that would have “cut early voting, eliminated precinct voting, and placed restrictive voter ID requirements,” says Tyler Daye, policy and civic engagement manager at Common Cause NC. The effort, which would have widely disenfranchised Black and brown voters, made national headlines.
A three-judge federal appeals panel in 2016 struck down the law, calling it “the most restrictive voting law North Carolina has seen since the era of Jim Crow” and one that “targeted African Americans with almost surgical precision.”
The movement to enact voting restrictions, making it harder to vote early, vote by mail, or vote at all if you’re a minority, surged after the 2020 presidential election, with extreme conservatives crying “voter fraud” as Joe Biden defeated Donald Trump.
These are the kinds of laws—ones that disproportionately affect young voters and voters of color—that Republicans could bring back if they win in the Moore v. Harper case, says Daye.
“And the question is, would there be a check on the state legislature’s power?” Daye says. “This case is really, truly vital to our democracy. It’s not a Democratic or Republican issue. It’s about all of our voting rights. No single branch of government should have unchecked power.”
The legalities
One reason Moore v. Harper is getting so much attention is that it’s different from the redistricting cases that have been argued in North Carolina before. Unlike previous cases, Moore doesn’t address a single voting map or law. Instead, it covers the wider question of how much autonomy state legislatures should have over redistricting and election laws.
“It goes beyond just redistricting,” Daye says. “We could be talking about federal elections law.”
Last year, following the decennial census, the battle over redistricting again came into the spotlight. The Republican-led legislature passed gerrymandered voting maps, and SCSJ challenged them in court. Voting rights advocates won the case in the NC Supreme Court, but unlike with previous cases, their battle didn’t stop there.
In June, the U.S. Supreme Court voted to take up the case, despite a previous 2019 ruling saying partisan gerrymandering should be handled by state courts. And Republicans are taking full advantage of the opportunity to make their case heard before the nation’s nine justices.
In Moore, the NC GOP is arguing that state lawmakers should have almost complete power over elections. They argue that state courts have no constitutional authority to strike down election laws and impose new ones, as they have in the past.
“That is what is so concerning, because if state legislatures have that sort of unchecked power, you’re giving a significant amount of power to one branch,” Daye adds. “No matter what party you’re a part of, you don’t want one party to have that type of unfettered power.”
The Republican argument is founded on the “independent state legislature theory,” a belief that “state legislatures—and only state legislatures—have the power to regulate federal elections in their states, irrespective of the constraints imposed by state constitutions or the efforts of state courts to enforce state laws,” says Asher Hildebrand, an associate professor at Duke University’s Sanford School of Public Policy.
“This radical theory has no basis in history, no basis in legal precedent, and no basis in common sense,” Hildebrand adds. “The fact that the Supreme Court is even considering it says far more about the extremism and diminishing credibility of the court than it does about the merits of the theory.”
During the exchange of written legal arguments, Republicans have at times suggested the court should overrule major precedents that have favored balance and oversight in redistricting, says Riggs.
That includes the right of voters to strike down a redistricting plan through referendum (1916’s Davis v. Hildebrant); the power of state governors to veto redistricting maps (1932’s Smiley v. Holm); and voters’ rights to create an independent redistricting commission (2015’s Arizona State Legislature v. Arizona Independent Redistricting Commission).
“[The] petitioners’ brief talks about the history of the elections clause, and they make it seem like this is an unfettered power that the framers gave to the state legislators, to the exclusion of all others and ignoring the traditional and historic underpinning of judicial review,” Riggs says.
The future
SCSJ’s defense of voting rights has received broad bipartisan support from lawyers, jurists, scholars, commentators, and others who have filed amicus curiae, or “friend of the court,” briefs in their favor, says Riggs. Notable participants include former California Republican governor Arnold Schwarzenegger and other former Republican officials, the American Bar Association, and the American Civil Liberties Union.
The outcome of the case is far from guaranteed, however. Even if the U.S. Supreme Court rules in favor of the respondents (SCSJ and others), battles over redistricting will continue, Riggs says.
“Whenever we won in a courtroom, those who have been committed to drawing redistricting lines to disempower rather than empower have found new ways,” she says. “Even if we get that positive outcome, it means we go back to state courts. There will be more work to be done, but at least we will know that state constitutions will do what they’re meant to do.”
The decision of the U.S. Supreme Court, likely to be released sometime next year, will lean on today’s oral arguments, including the exchange of questions and answers between justices and attorneys.
Thanks to Trump’s appointment of three new justices, the U.S. Supreme Court has a solid 6-3 conservative majority. A ruling in favor of Republicans could have significant consequences for voters, particularly those of color.
“We’ve seen Black and brown voters being targeted because of their race and for political reasons. And we’ve seen this justified as ‘It’s politics, not race,’ or ‘We’re just complying with the Voting Rights Act.’ [But] the Southern strategy is still alive and well, and we, as racial justice advocates, have to continue to call out and name that impact,” Riggs says.
“This is part of a larger story arc of North Carolina voters bucking under the restrictions of redistricting plans that are designed to polarize, separate, limit political power for some, and maximize political power for others. It’s part of a build-up to the ultimate question: How do voters get relief when the people that they’re electing are redrawing their own lines to secure their own futures?”
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