My Turn, Woodrow Barlow and Luka Thornton: Speaker Tim Moore vs. our voting rights

Published 12:00 am Sunday, November 6, 2022

By Woodrow Barlow and Luka Thornton

North Carolina has some of the strongest voter protection laws in the South.

This may seem surprising, considering we are among the most gerrymandered states in the country. Our state legislators have continually tried to rescind same-day registration and restrict absentee voting. Counties have been strategically targeted for voter roll purges and early voting cut-backs. It’s an agenda to promote a voting majority that represents a minority.

If N.C. lawmakers are so keen to diminish our vote, how come we have such strong voter protection laws? The answer lies in our state constitution. Attacks on voter access have largely been thwarted, either by veto or by challenge in the courts. Not all were thwarted in time to prevent damage — but we, the voters, are far from defenseless: our free elections clause is robust, and, in fact, provides more protections than most of our neighbors. In Common Cause v. Lewis (2019), N.C. judges ruled that partisan-gerrymandered maps are unconstitutional, citing this clause. It was a victory that pierced the heart of entrenched power. It should have made our legislators finally yield to democracy, but they are clinging viciously to the cartographic shield that has kept them safe for so long.

On Dec. 7, the federal Supreme Court will hear Moore v. Harper, a desperate and dangerous attempt at voter suppression by House Speaker Tim Moore.

Moore is fighting to keep North Carolina gerrymandered indefinitely. His argument hinges on a fringe political idea called independent state legislature theory — a radical reinterpretation of a state’s right to run elections.

The federal constitution grants state legislatures the power to decide where, when and how elections happen. Throughout American history, this has been interpreted to mean that legislators pass voting laws just like any other kind of law, by the process laid out in the state constitution. The governor can veto voting laws, cases related to voting laws can be heard in state courts, and, most crucially, all voting laws must abide by restrictions set out in the state constitution (such as our free elections clause).

The independent state legislature theory argues that the wording of the federal constitution grants state legislatures near-absolute power over elections, unbound by the usual lawmaking process. Moore claims that state legislatures are entitled to pass voting legislation and draw district lines unimpeded by other branches of government. This includes impunity from being overturned by state courts and the constitutions they uphold.

This case is not just about North Carolina anymore. Moore wants to remove checks and balances at the core of our democratic system. Federally, relatively few voter protections remain since the gutting of the Voting Rights Act in 2013. State-level protection is vital. If the SCOTUS accepts independent state legislature theory as a legitimate legal interpretation, extant voter protection laws in every state will effectively be nullified and replaced with … nothing. In what way does Moore’s argument benefit North Carolinians? The American people?

You might assume our nation’s highest court sees through this absurdity. The theory lacks credulity in academic literature by liberals and conservatives alike. The U.S. Conference of Chief Justices completely dismantled it in their amicus brief. When the Supreme Court decided against expediting the case in March, however, Justices Alito, Thomas and Gorsuch favored Moore’s argument. Justices Kavanaugh and Gorsuch also implied support for the theory in Democratic National Committee v. Wisconsin State Legislature (2020). And with Justice Alito and other originalists steering the courts away from historical precedent — as seen most recently in Dobbs v. Jackson Women’s Health Organization (2022) — the threat looms high.

In spite of these omens, there are still a few ways we can fight for our voting rights. One is to support the efforts of the Southern Coalition for Social Justice and Common Cause, but another is on the ballots. Our state Supreme Court has barely been keeping the legislature in check, and a veto-proof supermajority seems likely.

Two N.C. Supreme Court seats are on the ballot Tuesday. This midterm, direct your voting research to the judiciary. Vote for the candidates who want to keep your vote safe. We’re voting for Lucy Inman and Sam Ervin IV.

Woodrow Barlow and Luka Thornton were raised and educated in North Carolina. Thornton, a Salisbury native, attended Rowan-Salisbury public schools for most of K-12 and will graduate with an engineering doctoral degree from Duke University in December.

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