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Five things to know about North Carolina’s next big voting rights case

  • The case involves a fringe legal theory called the “independent state legislature theory”.
  • North Carolina state lawmakers used the theory in a bold attempt to dodge a landmark state court ruling that overturned their gerrymandered voting cards in a lawsuit filed by our North Carolina office
  • Here is five things to know about the upcoming case in the United States Supreme Court, the so-called “Independent State Legislature Theory”, and how Common Cause is defending our rights for a free and fair democracy where every vote counts. 1.) There is no historical basis. The “independent state legislature theory” would overturn decades of legal precedent by removing the ability of state courts to review whether state legislators have followed the law when it comes to setting election policies. It’s like taking the referee out of a game halfway through and hoping the players on the field play by the rules. The highest court in the land, if it accepted this long appeal plan, would also contradict itself. Barely three years ago, in Rucho v. Common Cause, the Supreme Court indicated that state courts are the ones who should decide whether partisan gerrymandering is allowed in the redistricting process. And in 2015, the Supreme Court ruled in an Arizona case that the court interpreted the reference to “legislature” to include the entire legislative process, not just the state legislature itself. 2.) This decision could upset the electoral systems of our country. U.S. Representative Zoe Lofgren (D-California) summed up the worst-case scenario during a congressional hearing on the “independent state legislature theory” held last week. “Professional, nonpartisan election administration is the cornerstone of modern American suffrage,” Lofgren said. “This whole apparatus could disappear overnight, at least for the federal election.” Removing the ability of the state court system to review decisions about our federal elections, from voting cards to whether early voting hours should be extended or reduced, will give partisan interests more ability to manipulate decisions as they please. Simply put, it would change the way we have run elections in the United States for over 200 years. 3.) Popular measures to facilitate voting are under threat. Have you got vote by mail in a recent election? Or use the early voting period to vote at a time that suits you? These voting methods have enabled many of us, including those of us from historically disadvantaged groups of voters, to vote in greater numbers so that we can be a government by, by and for the people. . But we could see this much-needed progress in some states undone if state judges can no longer expose partisan schemes that intentionally or actually disenfranchise voters. 4.) It could hurt Americans of all political persuasions. There is no obvious benefit to either of the two main political parties if this dangerous power grab theory sees the light of day. In traditionally blue states, Democrats might enjoy unchecked power without worrying about prying courts, while the reverse would be the case in red states with Republican-led leaders. On the losing side, however, will be voters who seek policies that serve the people, not special interests. Eliza Sweren-Becker of the Brennan Center summed this up before Congress last week, concluding that “the independent state legislature theory is bad for Americans no matter which side of the aisle you’re on.” 5.) Federal electoral protections are needed. One of the main reasons this Supreme Court case could have such a troubling effect is the inaction so far by Congress to enact federal election standards. the The John Lewis Voting Rights Advancement Act, named after the late Georgian congressman and civil rights hero, would normalize suffrage nationwide and address unjust, racist and anti-election measures that have discouraged and deprived voters in states with a history of discrimination. This bill has won the support of the United States House of Representatives, but has not yet been passed by the United States Senate. You can search your representatives and senators here, if you agree with us at Common Cause that we can’t wait for vote protections. At Common Cause, we believe the Supreme Court of the United States will see this desperate attempt to take away our right to vote for what it is. Our legal team will be in court in December defending a free and fair democracy where every vote counts. To find out more, click on here. Sarah Ovaska, a former NC Policy Watch reporter, now works as Southern Regional Communications Strategist for Common Cause.