If you’ve been following the U.S. Supreme Court this term, you might recognize some of the actual cases in addition to the court’s ongoing ethical scandals and failures. Chief among the cases to watch that I’ve flagged is Moore v. Harper, the one about the so-called independent state legislature theory that could throw federal elections into greater chaos.
But that case, which is awaiting decision after argument in December, could become moot.
Why is that?
Well, another court is giving the Supreme Court a run for its money on partisanship.
Indeed, North Carolina’s top court has decided to reconsider two recent decisions on voting by its previous 4-3 Democratic majority, after that math changed to 5-2 in Republicans’ favor in November. One of the decisions involves voter ID, and the other implicates the partisan gerrymandering issue at stake in Moore v. Harper. As election law expert Rick Hasen noted, an intervening decision from the state court could make the U.S. Supreme Court case moot.
But whatever happens with Moore v. Harper, it’s worth dwelling on the radical step of the state court potentially upending recent rulings after a clear shift in its partisan makeup. That fact wasn’t lost on the North Carolina court’s new minority. On Friday, Democratic Justice Anita Earls pointed out in dissent that since 1993, the court has decided to rehear only two cases, an action that the Republican majority matched in one day. Earls went on: Not only does today’s display of raw partisanship call into question the impartiality of the courts, but it erodes the notion that the judicial branch has the institutional capacity to be a principled check on legislation that violates constitutional and human rights.
There are clear parallels with the nation’s high court, where, among other things, the new Republican supermajority cleared the way for overturning Roe v. Wade last summer. Earls’ warning is an important reminder to pay attention not only to the U.S. Supreme Court but also to the state courts, which can wreak their own havoc on democracy.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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