Moore to Undermine Election Integrity

By Jennie Lusk

It’s not enough to complain about the sorry state of national or state politics. We need to do something: VOTE!

Voting has never been more important here in New Mexico, especially given the U.S. Supreme Court’s decisions closing the 2021-22 term. Its major take-down of women’s rights, Dobbs v. Jackson Women’s Health Organization, the power of executive agencies to control global warming, West Virginia v. EPA, and gun restrictions, New York State Rifle & Pistol Association v. Bruen, have left everyone reeling. Yet one of the court’s last moves deserves more attention than it has received: SCOTUS announced that it would hear Moore v. Harper, a particularly stealthy threat to structural democracy, this fall.

If the Court decides Moore as expected after October arguments, the already unfairly redistricted and Republican-dominated legislatures across the country will be wholly and independently in control of federal elections, without correction by state courts. Considering the six legislatures Trump persuaded to submit “alternative” electors to negate the legitimate popular presidential elections, the threat to democratic principles such as separation of powers is very real.

Moore brings the “independent state legislature” theory squarely to the Court. Proponents of the theory believe that the federal Constitution gives state legislatures nearly unfettered authority to write the rules for federal elections, with little or no oversight from state courts. Some election-law experts say that, if adopted, the independent state legislature theory could effectively strip state courts of their power to protect voting rights under state constitutions.  

Formally, the question Moore presents is: Whether a state’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives … prescribed … by the Legislature thereof,” and replace them with regulations “based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a ‘fair’ or ‘free’ election.”  The fact that the Court placed “fair” and “free” in snide quotes is an indicator that this radical court dominated by three new Trump appointees intends to define just what those words mean. 

Look out now!

Moore will decide whether redistricting maps drawn by the North Carolina legislature are too partisan in favor of Republicans. The North Carolina state supreme court thought they were. North Carolina Republicans appealed to the justices on grounds the state supreme court’s order was “starkly contrary” to the state’s elections clause, as the state court threw out a map that allowed the GOP two more seats than they deserve (as many as 10 of North Carolina’s 14 seats in Congress). The North Carolina GOP persuaded the Court to take the case now rather than deciding after the November mid-term elections. North Carolina state officials countered that the North Carolina dispute would not resolve the “independent state legislature” question at all, because the state legislature had specifically given the state’s courts the power to impose a temporary redistricting plan.

New Mexico’s election deniers are likely to gain more power because of Moore, especially if voters deciding the fate of every single New Mexico House of Representatives district in the state this November allow Republicans to gain traction. There are election deniers among the candidates–none of them Democrats.  There is an election denier running against Democrat Gabe Vasquez in Congressional District 2, drawn based on maps recommended by the independents, nonpartisan redistricting commission and drawn by our Democratically controlled legislature.

Right now, we have a Democratic governor promoting our interests. We have a Democratic Senate (27 to 15) and House (44 to 25, plus one Decline-to-State). If the November elections do not return a strong Democratic slate to continue the progress of our state legislature, we could see a rollback on the right to choose, the right to protect our environment against pollution, and the right to restrict access to guns as soon as the 2023 session. Just as destructive, we might see a body willing and able to undo the integrity of our elections process.