Is the balance of power teetering?

On Wednesday the Supreme Court heard a case potentially affecting every American. Not the one about a graphic designer who refused to do announcements for same-sex weddings. As far-reaching as that one could be (e.g., refusing on basis of race, gender, religion etc.), that’s overshadowing another, perhaps more-important case — which ironically could change the way the discrimination case would be decided down the road.

The stakes are as fundamental as democracy itself: A case out of North Carolina could change the way federal elections are run, giving state legislatures complete authority over election rules.

In Moore v. Harper, the Supreme Court will decide whether the North Carolina Supreme Court had the authority to strike down the legislature’s extremely partisan gerrymandered congressional map for violating the North Carolina Constitution. To illustrate, according to The Brennan Center for Justice and other sources, the gerrymander was so extreme that a 50-50 popular vote would have awarded 10 seats to the Republicans and only four to the Democrats.

The legislators in Moore have argued that a controversial and, so far, debunked interpretation of the U.S. Constitution renders the state’s courts and constitution powerless in matters relating to federal elections, contrary to historical jurisprudence.

Why does that matter?

Keeping three branches of government in balance has been the stalwart pillar of America’s democratic government, as designed by the Framers. Each branch has its own charge and responsibilities to citizens, and each can act as a check against the other. No one in total control, none without oversight and other-branch accountability.

That includes elections. Parties on both sides agree that if petitioners win, it could mean a fundamental change in the way federal elections are conducted. It would give state legislatures sole authority to set the rules (over elections including Congress), with only Congress allowed to intervene. No court oversight, no citizen initiatives could challenge their acts.

Note they both represent the legislative branch of government in a one-branch scenario of control. This would be the case even if the election violation alleged was committed by the legislative branch — in a sense the accused passing judgment on itself.

While the case was advanced by North Carolina Republican legislative leaders, the effect of a decision in their favor could also one day empower Democrats to do the same thing.

In a court brief, the petitioners argued the North Carolina Constitution “assigns state legislatures the federal function of regulating congressional elections … Because this directive is supreme over state law, the States may not limit the legislature’s discretion.”

According to various legal and media sources this “independent state legislature theory” could effectively end state court constitutional oversight (judicial branch) over federal election matters, as well as potentially negating governor vetoes (executive branch) and citizen initiatives intended to take partisanship out of election rules and redistricting.

A lopsided scenario of power.

The Supreme Court has never ruled that the Constitution’s recognition that the legislature leads the election process is a basis for changing the rest of the check-and-balance system. Legislative power has so far been limited by checks in constitutions and court oversight. In turn, those have been balanced against changes in statutory law, but not law which negates the roles of the other two.

Who benefits if the court finds for petitioners would depend on which party is in control of a legislature when redistricting occurs, and the makeup of voters in partisan-drawn districts. Yet in the legislative branch, the effect of any changes in federal law (made by those more easily elected in gerrymandered districts) tend to last long past the result of any election.

The decision will likely be announced before next summer.

“The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.” — James Madison, Federalist 47, 1788

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Sholeh Patrick, J.D. is a columnist for the Hagadone News Network. Email sholeh@cdapress.com.