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New Report Reveals Moore v Harper's State-by-State Threat to Democracy

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Created: 06 December, 2022
Updated: 07 December, 2022
3 min read

Moore v Harper is the single most important case before the Supreme Court as it pertains to the future of the democratic process. The decision could allow state lawmakers to undo decades-worth of progress in unrigging elections.

RepresentUs, the nation’s largest anti-corruption organization, released a new report, titled States of chaos, which identifies several voter-passed election reforms and more than 200 state constitutional provisions that are at risk depending on the court’s ruling, including:

  • Open primaries
  • Independent redistricting
  • Early voting
  • Absentee voting
  • Ranked choice voting
  • Voter ID requirements
  • “Free and fair” elections

An interactive map shows state-by-state what all is at risk.

At issue in Moore v. Harper is a concept known as the independent state legislature theory. Moore’s argument is that state courts (in this case the North Carolina Supreme Court) cannot toss a new congressional district map drawn by North Carolina lawmakers because the US constitution gives sole power over federal elections to the state legislature.

By "sole authority," the argument suggests that state lawmakers have higher authority than their state's constitution.

The argument relies on an incredibly strict and literal interpretation of Article 1, Section 4 of the US Constitution – a clause that has long been understood to ensure authority over elections falls to the legislative process of a state, not only to members of the state’s legislature.

Read more about Moore v. Harper and the Independent State Legislature theory here

A strict adherence to the independent state legislature theory would mean members of the state legislature can dictate federal election policy without oversight from state courts, because not even the state constitution matters.

This doesn’t just affect gerrymandering. Strict adherence to the independent state legislature theory means every federal election provision is at risk, including statutes and constitutional amendments approved by voters. If lawmakers wanted, they could decide to close primaries, restrict voter access, end absentee voting, and completely ignore the will of voters.

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If the court sides with Moore, it could threaten the very concept of “checks and balances," and the future of nonpartisan reform efforts. This is not hyperbole; it is reality.

“The idea behind Moore is simply bananas. There’s a reason America has a nearly 250-year history of rejecting fringe ideas that give politicians absolute power,” said RepresentUs CEO Joshua Graham Lynn. 

“Giving state lawmakers unchecked power over election rules is like giving a toddler unfettered access to the cookie jar. We already know they’re going to abuse their power – and the American people will end up paying for it.”

This is an era in which the legitimacy of an election is called into question simply because one side didn’t win. State courts have already had to prevent attempts by state lawmakers and other election officials from overturning elections.

Partisan lawmakers, whose number one priority is preserving and growing their party’s power, cannot be trusted with unchecked authority over elections. 

The Supreme Court will hear oral argument in Moore v. Harper on Wednesday, December 7. Every voter should follow developments in this case, and should check out RepresentUs’s new report and interactive map to see how elections could be threatened in their state.

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