By Keith T. Barber
It does not take a majority to prevail… but rather an irate, tireless minority, keen on setting brushfires of freedom in the minds of men. — Samuel Adams
Last month, in the span of a single week, the U.S. Supreme Court issued 13 consequential rulings — the blockbuster decision being Dobbs v. Jackson Women’s Health Organization, in which SCOTUS overturned Roe v. Wade, eliminating all federal protections of a woman’s right to bodily autonomy.
However, one day prior to the Dobbs ruling, the U.S. Supreme Court issued a decision in a lesser known case — Berger v. North Carolina Conference of the NAACP. In that case, SCOTUS held that the speaker of the N.C. House of Representatives, Tim Moore, and the president pro tempore of the N.C. Senate, Phil Berger, are entitled to intervene in federal litigation challenging North Carolina’s voter-ID law.
The case stems from the voter-ID law passed by the N.C. General Assembly in December 2018. Gov. Roy Cooper vetoed the bill, and the NAACP filed a lawsuit in federal court to block the state from enforcing the law. The NAACP argued the law violates Section 2 of the Voting Rights Act, which prohibits racial discrimination in voting.
In April 2021, a three-judge panel of a North Carolina Superior Court concluded the voter photo ID law violated the state’s constitution. At that point, Moore and Berger, both Republicans, filed their lawsuit under the pretext that N.C. Attorney General Josh Stein, a Democrat, was somehow not representing the interests of the state legislature by vigorously defending the voter-ID law.
And on June 23, the U.S. Supreme Court ruled 8-1 in favor of Tim Moore and Phil Berger. Justice Sonia Sotomayor represented the one dissenting vote in the high court’s decision. Justice Sotomayor stated the high court went astray in determining that the N.C. Attorney General Josh Stein could not adequately represent the state’s interest in the voter-ID case.
“That presumption of inadequacy improperly permits state law, as opposed to federal law, to determine whether an existing party adequately represents a particular interest,” Sotomayor stated. “Second, the Court errs by implying that the attorney general’s defense of the constitutionality of the voting law at issue here fell below a minimal standard of adequacy. I respectfully dissent.”
Berger v. North Carolina Conference of the NAACP feels like an end run around the authority of Governor Roy Cooper and N.C. Attorney General Josh Stein — authority vested in Gov. Cooper and AG Stein by North Carolina voters.
Consider this for a moment: In the 2020 general election, Josh Stein received 2,713,400 votes while Roy Cooper received 2,834,790 votes. In stark contrast, Phil Berger received a total of 68,712 votes, while Tim Moore received 24,491 votes, as both Berger and Moore held on to their respective seats in the legislature. Granted Berger and Moore represent legislative districts rather than the entire state, but that is precisely the point.
With its ruling, the U.S. Supreme Court has determined that two politicians who represent the will of roughly 1.2 percent of the state’s electorate have the right to intervene in a legal case on behalf of all North Carolinians despite the fact the state’s top law enforcement official — who represents the will of more than 2.7 million voters — has been defending the state’s interests in the case.
According to the N.C. State Board of Elections, there are currently 2,210,350 registered Republicans in North Carolina. Registered Democrats total 2,494,491 in the state, while unaffiliated voters represent the majority of the state’s voters with 2,569,272.
How is it possible then that Republicans have been in control of both the N.C. House and N.C. Senate since the 2010 midterm elections? The answer is simple: partisan gerrymandering — which brings us back to the U.S. Supreme Court.
Last week, SCOTUS announced that it would hear Moore v. Harper — a case that could be characterized as a brazen attempt by N.C. House Speaker Tim Moore and state Sen. Phil Berger to undermine the authority of the N.C. Supreme Court with respect to partisan gerrymandering of congressional districts, thus impacting the checks and balances built into the state constitution. SCOTUS agreed to hear the case either later this year or during its 2023 session.
Prof. Theodore M. Shaw, the Julius L. Chambers Distinguished Professor of Law and Director for the Center for Civil Rights at UNC-Chapel Hill, said the legal foundation of Moore v. Harper is a concept known as “the independent legislature theory.”
“Under Article One, Section Four of the federal constitution — there’s a provision that says drawing legislative districts congressional districts — that is in the hands of the state legislature — as opposed to drawing state legislative districts and other kinds of districts,” Prof. Shaw explained.
Article I, Section 4, gives state legislatures the task of determining how congressional elections are to be held. For example, the state legislature determines scheduling of an election, how voters may register and where they may cast their ballots, according to the Annenberg Guide to the United States Constitution.
In this case, Moore and Berger aren’t challenging the integrity of the N.C. Attorney General, but rather the authority of the N.C. Supreme Court to draw congressional districts. The lawsuit comes as a reaction to the N.C. Supreme Court issuing an order to the N.C. General Assembly earlier this year to redraw its congressional maps, stating the version of the maps submitted by the legislative body represented, “an unconstitutional partisan gerrymander.”
“Then the state Supreme Court appointed experts and those experts drew a district the state Supreme Court would order into effect because there should be a remedy for a violation,” Prof. Shaw explained. “That is the conflict that gives rise to this case that the Supreme Court is going to decide now.”
N.C. Attorney General Josh Stein has weighed in on the issue. In a written statement, Stein said, “Partisan gerrymandering is offensive to democracy, and it’s also contrary to our fundamental constitutional rights.”
“In a democracy, voters should choose their representatives, not the other way around,” Stein continued. “North Carolina’s Constitution guarantees free elections. Courts have ruled in the past that our constitution prohibits partisan gerrymandering, and I’m hopeful that the U.S. Supreme Court will continue to recognize the authority of state courts to enforce this constitutional right and keep political power where it belongs, with the people.”
Prof. Shaw characterized Moore v. Harper as a blatant power grab by state Republicans.
“No question this is about power, and about a party that is numerically in the minority, holding onto power by the use of partisan gerrymandering,” he said.
Considering the recent decisions of the U.S. Supreme Court — decisions that openly defy the will of the American people — it would not be surprising if two Republicans who represent roughly 1.2 percent of our state’s electorate are allowed to act as representatives of all voters.
“This Supreme Court — the most radically conservative court in my lifetime — is just the Supreme Court that may uphold this independent state legislature theory,” Shaw said.
In this current context, Samuel Adams’s prophetic words may have even greater resonance in 2022 than they did in the 18th century. The tyranny of the minority could very well be the greatest threat to American democracy.