By Woodrow Barlow and Luka Thornton
North Carolina has some of the strongest voter protection laws in the south.
This may seem surprising, considering how many times our state legislators have tried to pass photo ID requirements, prevent same-day registration, and restrict access to absentee ballots. They’ve strategically targeted counties for limited early voting options and voter roll purges. North Carolina is among the most gerrymandered states in the country. So if our lawmakers clearly want nothing more than to choke out our vote, how could it be that we have such strong voter protection laws?
The answer lies in our state constitution’s free elections clause. Attacks on voter access have largely been thwarted, either by veto or by challenge in the state 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. Now it’s at risk.
State legislatures have the power to decide where, when, and how elections happen, including how voting districts get carved up. Our legislators have long used racial and partisan gerrymandering to maintain a voting majority that represents a minority of voters. In Common Cause v. Lewis (2019), the NC courts ruled that partisan-gerrymandered maps are unconstitutional under the free elections clause – a victory that pierced the heart of entrenched power. This 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.
In a few weeks the federal supreme court will hear Moore v. Harper, a desperate and dangerous final attempt at voter suppression by House Speaker Tim Moore. Moore is fighting to keep North Carolina gerrymandered, and his argument hinges on a radical, fringe political idea called independent state legislature theory – an extreme reinterpretation of a state’s right to run elections.
The federal constitution specifically grants states the rights to manage their own elections. For all of 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. This means that the governor can veto voting laws, cases related to voting laws can be heard in state court, and, most crucially, all voting laws must abide by restrictions set out in the state constitution (such as our free elections clause).
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 without allowing for gubernatorial veto, without being bound by the free elections clause, and with impunity from being overturned by the courts.
If this theory sounds alarming, then you’re paying attention. This is not just about North Carolina anymore. At the federal level, relatively few voter protections exist (especially since the gutting of the Voting Rights Act in 2012), so state-level voter protections are vital. If the supreme court accepts independent state legislature theory as a legitimate legal interpretation, voter protection laws in every state will be effectively nullified and replaced with… nothing. In what way does Moore’s argument benefit North Carolinians? The American people?
You might assume that our nation’s highest court sees right through this absurdity. You’d think they would consider the lack of serious academic literature on the topic, or that they’d concur with the amicus brief published by the annual Conference of Chief Justices from every US state, district, and territory calling the theory “invalid”. However, Justices Gorsuch and Kavanaugh have already shown direct support for the independent state legislature theory in Democratic National Convention v. Wisconsin State Legislature (2020). This is especially threatening since Justice Alito and others have been reshaping stare decisis to enable rampant disregard for historical precedent, as leveraged most recently in Dobbs v. Jackson Women’s Health Organization (2022).
This voting season, there is a way you can fight for our voting rights. Our state supreme court has barely been keeping the legislature in check, and a veto-proof supermajority seems likely. Right now two NC Supreme Court seats are up for reelection. So this midterm, make the courts your primary focus for voting research – not just an afterthought. Vote for the candidates who want to keep your vote safe. We’ll be voting for Lucy Inman and Sam Ervin IV.
About the Authors
Woodrow is a software developer with an eclectic obsession for computers from the eighties. Luka researches the safety of chemicals in everyday products using fancy computer algorithms. As members of Durham’s LGBTQ+ community, they both feel civically motivated to protect the rights of everyone threatened by rising extremism.