What Moore v. Harper is really about

No, this case will not end democracy in America

If you read the media coverage of the Moore v. Harper case set for arguments at the U.S. Supreme Court, you’ll come away with only two pieces of information: This case is super, duper important, and probably going to destroy democracy in America.

As it turns out, neither is really true.

Moore v. Harper is the latest significant court battle over North Carolina political redistricting to reach the nation’s highest court. It is an interesting case, as it raises a new question that hasn’t been much considered: What exactly is the role of the court system in the redistricting process? Most of the previous court opinions have dealt with the legality of partisan gerrymandering, without much being settled.

The U.S. Supreme Court could decide to limit just how involved judges can be in drawing new political lines, firming up guardrails in the separation of powers. But the decision that ultimately comes down will not likely be earth-shattering, or even change the political landscape all that much.

Who are the people involved?

“Moore” is House Speaker Tim Moore, representing the General Assembly that drew the original electoral maps being challenged in the court system. Rebecca Harper is one of the 25 “voters” curated from the 14 Congressional districts to sue the General Assembly to challenge the maps. She’s a member of the Common Cause liberal activist group and was also one of the plaintiffs in a 2019 case that challenged previous maps.

In essence, this case pits the General Assembly against Democrat groups wanting maps more favorable to them. When the case went before the N.C. Supreme Court, it was known as “Harper v. Hall,” with Hall being Rep. Destin Hall, the chairman of the House redistricting committee.

How did we get here?

It’s a familiar story, with a slight twist for 2022. The U.S. Supreme Court ruled in the last series of court battles that it doesn’t want to judge partisan gerrymandering cases. Essentially, the court said that partisan gerrymanders are legal under the federal Constitution. So this case is all in state court.

The proceedings started last year after the General Assembly enacted new electoral maps to govern the 2022 elections, as required after the decennial U.S. Census. As usual, liberal groups sued to block the maps and get new ones more favorable to Democrats. The case made its way through the court system, with the Court of Appeals ruling unanimously in favor of the General Assembly.

Then, in a 4-3 vote along party lines, the Democrat majority on the North Carolina Supreme Court ruled that the maps passed by the General Assembly constituted an illegal partisan gerrymander under the provision in the state Constitution that says elections shall be “free.”

I’m not going to get too deep into the legal reasoning (you can read the opinion here), but in general the idea is that since Democrats got something like 49% of the popular vote in some statewide contests, they should have 49% of the seats in the General Assembly as opposed to the 43% they have currently. In the Congressional delegation, Democrats should have more safe seats to get closer to the popular vote split, the court essentially ruled.

After that state Supreme Court decision, the General Assembly went back and redrew General Assembly districts, as well as Congressional districts. A Wake County Superior Court panel of judges accepted the new state House and Senate maps, but rejected the redrawn Congressional maps.

Instead, the court system drew its own maps using a panel of “special masters.” The Wake County judges mandated that its own maps be used in the 2022 elections. Appeals were unsuccessful.

What’s the General Assembly’s argument?

Now that the case is in front of the U.S. Supreme Court, the General Assembly is no longer arguing anything about the legality of its maps. The question is about whether the courts acted properly, or how much latitude the state court system has to make its own rules and regulations for federal elections, especially maps.

Does the General Assembly get to draw Congressional electoral maps? Or can the judicial system draw its own and require them to be used?

The Moore side argues that the Constitution gives the state legislatures the sole right to draw maps and create election rules. They claim the judiciary has stepped over the line by throwing out the General Assembly’s maps and requiring its own maps to be used. It’s a separation of powers argument.

Here’s a key line from the General Assembly’s petition to the Supreme Court that sums up its argument.

“[T]he North Carolina judicial branch’s role is to “interpret the laws and, through its power of judicial review, determine whether they comply with the constitution,” … not to resolve “those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the legislative or executive branches of government.”

What are the counterarguments?

Basically, the counterargument is that yes, the state legislature has the authority to make the maps and rules for federal elections, but it has to do so within the boundaries of the state Constitution. In their argument, the state Supreme Court ruled that the maps were illegal, so it must then make sure that proper maps are used.

To Common Cause, the question is whether state courts can “ensure state laws do not violate individuals’ state constitutional rights,” as they posed it in their petition to the U.S. Supreme Court.

Then why is the case getting so much national attention?

Because of a potential interpretation of the U.S. Constitution known as the “independent state legislature theory.”

What is the independent state legislature theory?

Basically, it’s an argument over how this element of the U.S. Constitution should be interpreted, the “Elections Clause”:

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof…”

Under a super strict reading of the independent state legislature theory, this would mean that the legislature, and only the legislature — with no oversight from state courts — could make rules for federal elections.

It’s hinted at in the General Assembly’s brief here:

The Elections Clause does not give the state courts, or any other organ of state government, the power to second-guess the legislature’s determinations.

The other end of the spectrum on how to read it is that “Legislature” really means “the normal state legislative process,” which includes unlimited state court oversight. This is how people who reject the independent state legislature theory interpret the clause.

Then, of course, there’s plenty of middle ground. It doesn’t have to be all one way or the other.

Is the General Assembly asking for the power to overthrow elections?

No. If you hear that, it’s because some radical interpretation of the independent state legislature theory was invoked by former President Donald Trump’s legal team after the 2020 election. They claimed state legislatures could throw out the results of a presidential election. This argument has essentially been laughed out of every courtroom it’s been in.

What will happen? 

Oral arguments are scheduled for December. Chances are that the U.S. Supreme Court will take a moderate path on this case. The court can rule that North Carolina’s judiciary overstepped its boundaries by insisting that its own maps be used in the 2022 election, without claiming that state courts have no role in the process.

This would curb some of the worst abuses of the system, including what just happened earlier this year.

However, it still leaves North Carolina’s redistricting problem unsolved. Our state’s current method of determining electoral districts is unworkable and undermines confidence in our system of government. We can’t live with an election landscape that whiplashes back and forth based on which judge holds the pen.

We need an unchanging system of straightforward rules to govern how districts can be drawn, one that’s beyond the caprices of activist judges. These rules should be based on geography and cohesive communities, not on preordained partisan ends.

We won’t get that from the U.S. Supreme Court. Perhaps we will after this year’s state Supreme Court elections.

5 things of note

North Carolina drops significantly in reading, math scores

Like much of the rest of the nation, North Carolina's fourth- and eighth-graders lost considerable ground in reading and math after a year in which public schools closed their doors for months on end. WFAE recaps the scores on the National Assessment of Educational Progress tests released last week, also known as the Nation's Report Card.

School districts are consoling themselves by noting that North Carolina scores are similar to the national average, and Charlotte-Mecklenburg Schools performs slightly better than other large urban districts. But these results are abysmal and completely unacceptable. Only one-third of fourth- and eighth-graders are proficient in reading, and only one-quarter are proficient in math.

It's well past time that North Carolina pared down what schools are attempting to accomplish and double down on what they absolutely must do: Teach children to read, write and do math.

State treasurer reports N.C. hospitals profiting from Medicare coverage

Dale Folwell's office published a report this week criticizing North Carolina hospitals for misrepresenting to the public how much they earn from Medicare-funded treatments. Here's the key line: "North Carolina hospital lobbyists claimed they lost $3.1 billion on Medicare in 2020 — the same year hospitals actually reaped a total of $87 million in Medicare profits."

The issue isn't that hospitals are profiting here, since nobody begrudges an organization from operating in a financially prudent manner. The issue is that hospitals claim they lose so much money on Medicare patients that they need to charge higher rates to private insurers and public-funded health insurance networks like the State Health Plan. Hospitals pushed back and said Folwell's analysis left out some costs.

But in either case, this is one more example of how financially opaque the healthcare system is and the issues that causes. We need to open up more transparency into the industry's pricing practices, repeal Certificate of Need laws to give North Carolinians more choices, and treat insurance as a financial backstop rather than the way everything gets paid for.

Where is the line in photo manipulation in campaign ads? 

Candidates on both sides of the aisle are crying foul about political mailers and digital ads that attack opponents by manipulating their pictures to convey something negative, WRAL reports. On the left, the chief complaint has been mailers that change the text of a Democrat's T-shirt to read "Defund the Police." On the right, one of the prime examples is a Democrat who changed the background of their Republican challenger's photo to make it look like he was in a police lineup.

To me, photo manipulation is fair game if it is obvious. If a reasonable person will understand that the ad is using design to make a political point, it's all good. The ads that change the text on a candidate's T-shirt cross the line, though I know this may be an unpopular opinion in conservative circles. I'm all for hard-hitting ads, and honestly wish Republican General Assembly candidates would be more aggressive in their messaging. But it's enough to use Democrats' own words against them. 

The North Carolina Supreme Court's assault on democracy

Since we’re talking about the integrity of the court system this week, it’s worth noting this as well. The state Supreme Court is using an unusual procedural maneuver to rush through cases before new justices can be elected, the News and Observer reports. It’s a pretty clear admission that the current Democrat majority is attempting to issue opinions that achieve their activist policy goals before getting booted out of office. There should be an outcry.

The Longleaf Politics website is back

While this newsletter will still be my primary focus, the Longleaf Politics website is back. Right now, you’re just going to see a bunch of old content, but the plan is to update the best of it and create some new resources to get informed, get elected and get ahead in N.C. politics.

You may notice that the new site is a dot-org, rather than the old dot-com. I, unfortunately, let the previous domain lapse during my hiatus, and a reseller scooped it up. They want $5,000 to give it back to me. Let that be a lesson to you: Don’t make my mistake!