What You Need to Know About Moore v. Harper, the Supreme Court Case That Could Blow Up American Democracy
The case could give state legislatures unchecked power to make election rules without any intervention from state courts, governors, or voters.
Moore v. Harper Background
The Supreme Court is currently considering a case that could drastically alter the way elections are conducted in the U.S. and seriously undermine essential democratic processes.
The case in question is called Moore v. Harper and centers around Republican gerrymandering in North Carolina. After the 2020 Census, the state’s Republican-controlled legislature adopted a new Congressional map that gave them a supermajority and a major advantage in winning House seats.
The North Carolina Supreme Court rejected the map, arguing it was “an egregious and intentional partisan gerrymander” that violated the state’s Constitution. As a result, the legislature re-drew their map, but that was also rejected for being gerrymandered by a state court that appointed a special master to make a fair map.
After some more legal back and forth, the Republicans brought the case to the Supreme Court, which eventually agreed to hear it.
All of that might sound pretty run-of-the-mill, but what makes this case so unique is the argument North Carolina Republicans are making in asking the Supreme Court to reinstate their map.
“Moore v. Harper is really one of the most important democracy-related cases that the U.S. Supreme Court has ever heard, ever,” Mike Sozan, a senior fellow at the Center for American Progress, told Rogue Rocket.
The basis for the Republicans’ claim relies on an untested, fringe idea called the Independent State Legislature (ISL) theory, which has recently gained traction after being touted by former President Donald Trump and his allies in their effort to overturn the election.
ISL theory argues that the U.S. Constitution gives state legislatures essentially exclusive authority to set election rules and congressional maps — and nothing can stop them. State legislators could basically make whatever changes they want to their election systems, and governors or state courts would be prohibited from intervening.
State lawmakers could also ignore election-related ballot initiatives, undermining the will of voters. Most alarmingly, the legislatures could even violate their own state Constitutions — which the North Carolina Republicans are arguing for in this case.
The Basis for ISL Theory
Sozan explained that the North Carolina Republicans point to two clauses in the U.S. Constitution that pertain the powers given to “legislatures” to “do things like set election rules for federal elections and that play a role in how presidential electors are selected.”
“It’s true that the word legislature appears in the Constitution in those clauses, but over the course of the 200-plus year history of our country, the Supreme Court has never interpreted the word legislature that narrowly,” he said. “It has, in fact, always interpreted that word in the common sense way, which is a broad interpretation.”
Sozan asserted that the “broad interpretation” of these clauses is basically just that checks and balances should exist — governors should be involved in lawmaking and courts should have the power of judicial review.
As a result, when ISL theory has been raised in the past, “the court has almost always struck it down completely.”
The theory has also been widely discredited by experts on both sides of the aisle — including many prominent conservatives — and condemned as going against democracy and American history.
“There are also times in the Constitution where the word ‘Congress’ appears […] and this theory would be saying that the word ‘Congress,’ wherever it appears, means only Congress and not the president of the United States having any role in how laws are passed or the U.S. Supreme Court being able to review those laws or the US Constitution serving as guardrails,” Sozan explained in an analogy. “I think we would all say that it’s absurd that Congress would be able to just do whatever it wants to when it passes a law.”
Sozan also provided some insight as to what would actually happen if the Supreme Court ruled in favor of the Republicans in this case.
“So from a big picture perspective, this could throw our system of free and fair elections and our democracy into chaos, because suddenly judges would not be allowed to review and throw out laws that were passed by a legislature that were anti-voter laws, that are unfair laws,” he said.
“Constitutional provisions that guarantee free and fair elections, for example, could be rendered meaningless. Governors could lose their right to veto or sign laws as part of the normal lawmaking process,” he continued. “Secretaries of state and other local and state election officials, who are often given discretion to help carry out election-related laws in a fair way, could be stripped of that authority.”
Sozan also added that voting could become chaotic because there could be one set of rules for state-level races and a different set for federal races in elections where people vote for both, which they do in most elections.
“Imagine two different sets of rules regarding things like voting hours or voting locations, or whether drop boxes are allowed or whether people are properly registered,” he told Rogue Rocket. “That could throw our elections into chaos, and from a bigger picture, it can make people even less trustworthy of our elections. And that could also just reduce people’s wanting to be involved in our elections and our democracy.”
Arguably the biggest concern, however, is what partisan state legislators will do with all their unchecked power.
“We’ve seen over 20 states in the past two years, states that are controlled by Republican legislatures. We’ve seen these states pass voter suppression and election sabotage laws, almost always based on the big lie,” Sozan noted.
“Imagine all of those state legislatures being able to do what they did in the past couple of years, but on steroids, with no court to check them and no constitution to check them.”
“They’re going to be able to pass whatever laws they want related to federal elections,” he continued. “They could decide to make it harder for people to vote. They could decide to make it much easier to draw unfair boundaries for congressional maps. And it could just really heighten extremism in our nation at a time where we really all need to be lowering the political temperature.”
Oral Arguments Prompt (Some) Optimism
Despite the serious threats posed by the potential embrace of this theory, Sozan said that he is cautiously optimistic the high court will err on the side of reason following oral arguments earlier this month.
Specifically, Sozan said that the court’s three liberals made it clear that they opposed ISL theory. Three of the conservative justices — Clarence Thomas, Samuel Alito, and Neil Gorsuch — seemed very much in the camp of supporting ISL theory, but the other three conservatives were more on the fence.
“And that’s what gave me a little bit of optimism here, that hopefully, the court will not adopt this theory in all of its glory, in its full-fledged nature,” Sozan stated. “Maybe there can be a way that it’s adopted in a more narrow way that might circumscribe state courts and state constitutions in some way, but still protect state courts’ ability to get involved in cases and to apply state constitutions.”
Sozan also noted that there are some checks and balances in place to counter ISL theory if the court does rule in favor of the North Carolina Republicans.
For example, if state courts get cut out of election rule-making, federal courts would still have jurisdiction to determine which laws are Constitutional. Those federal courts, however, would have to do way more litigation and likely get super backed up, slowing down the whole process.
Congress could also pass laws regarding federal elections, but, as Sozan noted, they are so gridlocked now it seems impossible they could approve sweeping elections legislation.
Federal lawmakers might agree to smaller, piecemeal bills. Sozan noted that, currently, lawmakers are actually on the verge of passing changes to the Electoral Count Act — which outlines rules for how electors are chosen — to prevent a president from trying to overturn a valid election like Trump did.
The Supreme Court is expected to hand down its decision on Moore v. Harper in June of 2023.
See what others are saying: (The Brennan Center for Justice) (ProPublica) (CNN)
Survey and Census Data Shows Record Number of Americans are Struggling Financially
Americans are choosing not to pursue medical treatment more and more frequently as they encounter money troubles.
A recent federal survey shows that a record number of Americans were worse off financially in 2022 than a year prior.
Coupled with recent census data showing pervasive poverty across much of the country, Americans are forced to make difficult decisions, like foregoing expensive healthcare.
According to a recent Federal Reserve Bureau survey, 35% of adults say they were worse off in 2022 than 2021, which is the highest share ever recorded since the question was raised in 2014.
Additionally, half of adults reported their budget was majorly affected by rising prices across the country, and that number is even higher among minority communities and parents living with their children.
According to recent census data, more than 10% of the counties in the U.S. are experiencing persistent poverty, meaning the area has had a poverty rate of 20% or higher between 1989 and 2019.
16 states report at least 10% of their population living in persistent poverty. But most of the suffering counties were found in the South — which accounts for over half the people living in persistent poverty, despite making up less than 40% of the population.
These financial realities have placed many Americans in the unfortunate situation of choosing between medical treatment and survival. The Federal Reserve study found that the share of Americans who skipped medical treatment because of the cost has drastically increased since 2020.
The reflection of this can be found in the overall health of households in different income brackets. 75% of households with an income of $25,000 or less report being in good health – compared to the 91% of households with $100,000 or more income.
See what others are saying: (Axios) (The Hill) (Federal Reserve)
Montana Governor Signs TikTok Ban
The ban will likely face legal challenges before it is officially enacted next year.
First Statewide Ban of TikTok
Montana became the first state to ban TikTok on Wednesday after Gov. Greg Gianforte (R) signed legislation aimed at protecting “Montanans’ personal and private data from the Chinese Communist Party.”
The ban will go into effect on Jan. 1, 2024, though the law will likely face a handful of legal challenges before that date.
Under the law, citizens of the state will not be held liable for using the app, but companies that offer the app on their platforms, like Apple and Google, will face a $10,000 fine per day of violations. TikTok would also be subject to the hefty daily fine.
Questions remain about how tech companies will practically enforce this law. During a hearing earlier this year, a representative from TechNet said that these platforms don’t have the ability to “geofence” apps by state.
Roger Entner, an analyst at Recon Analytics, told the Associated Press that app stores could have the capability to enforce the restriction, but it would be difficult to carry out and there would be a variety of loopholes by tools like VPNs.
Montana’s law comes as U.S. politicians have taken aim at TikTok over its alleged ties to the CCP. Earlier this year, the White House directed federal agencies to remove TikTok from government devices. Conservatives, in particular, have been increasingly working to restrict the app.
“The Chinese Communist Party using TikTok to spy on Americans, violate their privacy, and collect their personal, private, and sensitive information is well-documented,” Gov. Gianforte said in a Wednesday statement.
Criticism of Montana Law
TikTok, however, has repeatedly denied that it gives user data to the government. The company released a statement claiming Montana’s law “infringes on the First Amendment rights of the people” in the state.
“We want to reassure Montanans that they can continue using TikTok to express themselves, earn a living, and find community as we continue working to defend the rights of our users inside and outside of Montana,” the company said.
The American Civil Liberties Union condemned Montana’s law for similar reasons.
“This law tramples on our free speech rights under the guise of national security and lays the groundwork for excessive government control over the internet,” the ACLU tweeted. “Elected officials do not have the right to selectively censor entire social media apps based on their country of origin.”
Per the AP, there are 200,000 TikTok users in Montana, and another 6,000 businesses use the platform as well. Lawsuits are expected to be filed against the law in the near future.
See what others are saying: (Associated Press) (Fast Company) (CBS News)
How a Disney-Loving Former Youth Pastor Landed on The FBI’s “Most Wanted” List
“Do what is best, not for yourself, for once. Think about everyone else,” Chris Burns’ 19-year-old son pleaded to his father via The Daily Beast.
Multi-Million Dollar Scheme
Former youth pastor turned financial advisor Chris Burns remains at large since going on the run in September of 2020 to avoid a Securities Exchange Commission investigation into his businesses.
Despite his fugitive status, the Justice Department recently indicted Burns with several more charges on top of the $12 million default judgment he received from the SEC.
Burns allegedly sold false promissory notes to investors across Georgia, North Carolina, and Florida. The SEC claims he told the investors they were participating in a “peer to peer” lending program where businesses that needed capital would borrow money and then repay it with interest as high as 20%. Burns allegedly also reassured investors that the businesses had collateral so the investment was low-risk.
The SEC says that Burns instead took that money for personal use.
Burns began his adult life as a youth pastor back in 2007 before transitioning into financial planning a few years later. By 2017, he launched his own radio show, The Chris Burns Show, which was funded by one of his companies, Dynamic Money – where every week Burns would “unpack how this week’s headlines practically impact your life, wallet, and future,” according to the description. He also frequently appeared on television and online, talking about finances and politics.
The SEC alleges that he used his public appearances to elevate his status as a financial advisor and maximize his reach to investors.
His family told The Daily Beast that he became obsessed with success and he reportedly bought hand-made clothes, a million-dollar lakehouse, a boat, several cars, and took his family on several trips to Disney World. His eldest son and wife said that Burns was paying thousands of dollars a day for VIP tours and once paid for the neighbors to come along.
Then in September 2020, he reportedly told his wife that he was being investigated by the Securities Exchange Commission but he told her not to worry.
The day that he was supposed to turn over his business documents to the SEC, he disappeared, telling his wife he was just going to take a trip to North Carolina to tell his parents about the investigation. Then, the car was found abandoned in a parking lot with several cashier’s checks totaling $78,000
FBI’s Most Wanted
The default judgment in the SEC complaint orders Burns, if he’s ever found, to pay $12 million to his victims, as well as over $650,000 in a civil penalty. Additionally, a federal criminal complaint charged him with mail fraud. Burns is currently on the FBI’s Most Wanted list.
Last week, the Justice Department indicted him on several other charges including 10 counts of wire fraud and two counts of mail fraud.
“Burns is charged for allegedly stealing millions of dollars from clients in an illegal investment fraud scheme,” Keri Farley, Special Agent in Charge of FBI Atlanta, said in a statement to The Daily Beast. “Financial crimes of this nature can cause significant disruptions to the lives of those who are victimized, and the FBI is dedicated to holding these criminals accountable.”
His family maintains that they knew nothing of Burns’ schemes. His wife reportedly returned over $300,000 that he had given to her.
She and their eldest son, who is now 19, told The Daily Beast they just want Burns to turn himself in, take responsibility for his actions, and try to help the people he hurt.
“Do what is best, not for yourself, for once. Think about everyone else,” Burns’ son said in a message to his father via The Daily Beast.