In a month, the Supreme Court – which began its 2022-23 term with historically low levels of trust – will hear an election law case that has the potential to either begin to rebuild the court’s trust or severely undermine our democratic institutions. And while that case has largely flown under the radar, those of us in law enforcement should be alarmed by the tremendous effect it could have on our ability to keep communities safe.
The case, Moore v. Harper, stems from North Carolina, where in 2020 the legislature approved a new map of congressional districts that gave Republicans a drastic advantage in congressional elections. Soon after, the North Carolina Supreme Court struck down the legislature’s new maps, finding them to be “partisan gerrymandering” in violation of the state constitution’s requirement that elections be “free” and that all people receive “equal protection of the laws.”
The case before the Supreme Court isn’t about the maps themselves. Instead, the court will consider whether judges have the authority to review the constitutionality of redistricting maps.
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‘Independent state legislature theory’ based on misguided reading of Constitution
North Carolina legislators are invoking an unprecedented interpretation of the Constitution called the “independent state legislature theory,” arguing that provisions in the U.S. Constitution delegating responsibility for setting federal election rules to each state’s legislature prohibit state-level judicial review of these decisions – a sweeping starting point that freezes out judges and would decimate well-settled judicial checks and balances that ensure legislative decisions do not infringe on state constitutional protections.
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This issue, loaded with legal jargon and dealing with esoteric constitutional provisions, has largely been lost amid the noise of the Supreme Court’s recent controversies. But the implications of this case extend far beyond the idiosyncrasies of election law.
Under this theory, state legislatures would have nearly unrestricted authority to set the rules for federal elections and prevent state courts or governors from exercising oversight. Many legal scholars have pointed out that this doctrine is based on a misguided reading of the Constitution, but the fact that the nation’s highest court chose to hear this case is cause for concern.
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If the court adopts this theory, state legislatures – which are often unrepresentative of the communities they serve – could manipulate the outcomes of federal elections by gerrymandering districts, suppressing votes or perhaps even awarding their state’s electoral votes to a presidential candidate who lost the state’s popular vote, as some legislators proposed doing in 2020.
A Supreme Court decision legitimizing the independent state legislature doctrine could destroy public trust in the legitimacy of the judiciary and electoral systems, which isn’t just a voting rights issue – it’s a public safety issue.
Public trust in legal system depends on judges who serve as neutral arbiters
Elections are vital to the credibility of our system; communities are more likely to accept as legitimate institutions that are held accountable through the voting process.
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If people believe that they have no say in the institutions that shape their lives, they are more likely to regard those institutions as illegitimate. This in turn makes people feel less safe, reduces trust and cooperation among community members, increases prejudice and polarization, spurs corruption and heightens the risk of violence.
The foundation of our legal system is the public’s trust in its legitimacy, much of which is derived from the belief that it is overseen by judges who serve as neutral arbiters, are unswayed by political influences and can act as a last line of defense when politicians abuse their authority.
The independent state legislature theory would constitute an unprecedented affront to the concept of checks and balances, signaling to people that their state courts have no power to stop their legislators from overriding their votes or trampling their rights.
The justice system cannot operate without the cooperation of the community. Police, prosecutors, judges and other officials within the system depend on community members to report crimes, testify in court and participate in efforts to prevent crime. When community members perceive the justice system to be illegitimate, they are less likely to work with or within the system and more likely to attempt to take justice into their own hands.
Every time we weaken the courts’ authority to protect individuals’ rights and check politicians’ overreach, we weaken the system’s capacity to solve and address serious crimes.
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This case will be decided at a time when community trust is particularly fragile. People living in areas that see the most crime have long held distrust in the criminal legal system’s capacity to deliver justice, which is a major barrier to efforts to solve and prevent violent crime. Several of the system’s public failings over the past few years have made matters worse.
Today, 6 in 10 Americans say the Supreme Court is primarily motivated by politics rather than the law, only 14% of Americans trust the criminal justice system and trust in U.S. institutions as a whole is at historic lows. Our justice system is already standing on shaky ground.
If the Supreme Court decides that state legislators can effectively determine the outcome of federal elections with no oversight, its decision would have the potential to push community trust in the legal system to its breaking point. It would signal to Americans that their votes count only if their legislators decide they should, and that they cannot turn to the courts when their rights are violated.
Anyone who claims to care about justice and public safety must raise the alarm now, before it’s too late.
Eli Savit is the prosecuting attorney for Washtenaw County, Michigan. Garry McFadden is the sheriff of Mecklenburg County, North Carolina. Miriam Aroni Krinsky is the executive director of Fair and Just Prosecution, a former federal prosecutor and the author of “Change from Within: Reimagining the 21st-Century Prosecutor.”
This column is part of a series by USA TODAY Opinion about police accountability and building safer communities. The project began in 2021 by examining qualified immunity and continues in 2022 by examining various ways to improve law enforcement. The project is made possible in part by a grant from Stand Together, which does not provide editorial input.
Story Credit: usatoday.com