On December 7, the United States Supreme Court heard oral arguments for the case Moore v. Harper, a case which could effectively eliminate the influence of the popular vote in presidential elections. In Moore, a case which the Court, now dominated by a far-right majority, will likely decide before July 2023, it is possible that justices will rule in favor of allowing state legislatures the authority to decide the outcome of presidential elections, regardless of the popular vote.
Peoples Dispatch spoke to Brian Becker, founding member of the Party for Socialism and Liberation (PSL) and part of the PSL’s central committee, about a pamphlet he authored, titled “The Supreme Court vs. Democracy.” In our conversation, Becker outlined what is at stake regarding the future of democracy in the United States.
Peoples Dispatch: What exactly is at stake in the Moore v. Harper case?
Brian Becker: Last year, the North Carolina state legislature decided to divide up congressional districts in the state in a way that would benefit a political grouping, in this case: the Republican Party. This practice is called “gerrymandering”. This gerrymandered map is a statistical outlier, which would award the majority of congressional seats to Republicans, more so than 99% of maps. It severely suppressed the voting power of Black people in North Carolina.
In response, the North Carolina State Supreme Court overturned the racist gerrymandering scheme by the right-wing Republican state legislature.
The Republicans in the state legislature argued that the state Supreme Court has no authority to overturn a measure by a state legislature. They argue that the US Constitution gives state legislatures the sole authority in the country to determine how federal elections, meaning congressional elections and presidential elections, are undertaken in their state. This is called the “independent state legislature theory.” If the Supreme Court were to uphold the argument brought forward by North Carolina Speaker of the House Timothy Moore, that would mean that the 30 state legislatures dominated by right-wing Republicans across the country would have sole authority going forward in how elections are organized.
The reason that this is so important is that it would accelerate the virtual elimination of Black voting rights all around the United States. The ultra right-wing in the ruling class has always feared the expansion of democratic rights, especially for the Black community, because the intervention of the Black community in American politics is a counterweight against the racist right-wing program.
Secondly, this would also have a potentially significant impact on the way the federal government is formed. If state legislatures can determine which electoral slate is valid and which is not after a popular vote, in the instance of a claimed dispute or fraud, Republican state legislatures could throw out the electoral slate for the Democratic Party and replace it with the electoral slate for the Republicans.
So you can see where in a country where 30 of the 50 states are controlled by right-wing Republican state legislatures, the impact on election outcomes could be very dramatic if the right-wing alone can determine how an election is organized and who wins the election in each state. This argument is obviously designed to create a permanent right-wing government in the United States.
The January 6th insurrection, wherein right-wing Republicans under the leadership of Donald Trump tried to decertify the election outcome because they lost, could become the rule and not the exception. It would become the law of the land rather than an insubordinate anomaly. So on both platforms, Black voting rights and the way the government is formed, the Moore v. Harper case has potentially vast historical implications.
What we’re arguing as a working class party is that independent state legislature theory would be a fundamental negation of even bourgeois democratic rights, precisely because the demographics in the country have shifted in a way that’s unfavorable for the ultra-right of the ruling class.
How does that happen? 83% of the population now lives in urban areas. The people who are under 39 years old are voting in a more progressive direction. The Black vote is very large and very well-organized. Latino voters are becoming more and more numerous, as are other immigrant communities.
The ultra-right feels that a highly urbanized part of the population that’s very multiracial will not embrace the program of the ultra-right. So what the ultra-right is trying to do is use the Supreme Court to eliminate democratic rights and to change the way government is formed.
That’s the reason the Supreme Court took the Moore case, to entertain the possibility of reshaping the legal arguments or contours for basic democratic rights. Otherwise, there would be no reason for the court to have taken this case.
And this is the same court that ruled that abortion rights, Roe v. Wade, were rights that could be extinguished, the same court that is also entertaining cases where the rights of LGBTQ people, and people who have secured marriage equality rights for non-heterosexual couples could be eviscerated. And the Court also ruled that the Environmental Protection Agency does not have the authority to limit emissions. The Court is also entertaining discussions about an Alabama gerrymandering case that could uphold the idea that Black voters in the state of Alabama, who constitute one third of the electorate but have only limited impact on congressional elections because of racist gerrymandering, have no right to challenge racist electoral maps.
When you look at the pattern of the cases that are before this court and the decision by this very right-wing court to hear the Moore v. Harper case, you have to come to the conclusion that the reason they’re going to rule whether or not the North Carolina Supreme Court violated the US Constitution by throwing out a gerrymandering scheme that was clearly and obviously racist, is because the Court is seeking to take away additional democratic rights.
The Court is taking democratic rights that have been achieved by workers, by the Black community, by women, by the lesbian, gay, bi, trans and queer community, and by people trying to save the environment from climate catastrophe. All of these rights that were achieved over 70 years of hard fought battles—the court is now trying to reverse these historical achievements and reforms, and that’s what makes the case so important.
PD: The oral arguments were just live-streamed for Moore v. Harper, what are some of the highlights? What is most important?
BB: For people who are not lawyers who practiced before the Supreme Court, it would be very hard to make heads or tails out of what actually happened in today’s hearing. The arguments are presented in the most esoteric way that makes them almost unintelligible for the average person. But the impact of this decision will have huge consequences for the so-called “average person.”
If you listened to the oral arguments, you could hardly recognize that this was the issue at stake. It was argued from the perspective of what the framers of the Constitution meant in 1789, when they wrote that the state legislatures and they alone, according to the electoral clause, could place time and manner restrictions on the way federal elections were organized within a particular state.
And so there’s this esoteric debate, in which both sides are arguing about the impact of British common law that came from a century earlier than even the framers, from 1689. The problem in the US legal system is on full display today, that the vital democratic rights that are on the chopping block were not even openly discussed in the argument by either side.
There was only one judge, Justice Kagan, who made the argument, but still framed in a very esoteric way, that the case has consequences. That really what’s at stake is whether or not right-wing state legislatures can determine how elections are run, managed, executed and interpreted on the state level.
It’s very frustrating for people who are advocates of democratic rights to listen to this case being argued in court in such a way that so-called “average” people, meaning the working class, would not understand at all what this case is about. We’re not just spectators. We’re spectators who don’t understand the plot of the movie.
The Party for Socialism and Liberation has issued a new pamphlet, titled “The Supreme Court vs. Democracy.” We frame the discussion in a way that makes it understandable to the working class, what’s actually at stake with Moore v. Harper.
PD: Could you talk more specifically about what’s at stake if the court ends up ruling in favor of the state legislature of North Carolina? What could happen in 2024, for example, in the upcoming presidential elections?
BB: Will the Supreme Court uphold and support Moore? This has become a subject of great debate.
Our new pamphlet is based on a speech I gave during the PSL’s Fifth Party Congress in July. At the time, no one was talking about this issue. We were sounding the alarm. The point of our intervention was to make people aware of the danger to democratic rights.
But now, in the last few weeks, big sectors of the establishment itself are weighing in on the independent state legislature theory. There are different opinions being voiced, including even by right-wing voices who now fear that if the Supreme Court goes ahead and negates democratic rights through the independent state legislature theory, it could have the opposite impact. Instead of negating bourgeois democratic rights, it could stimulate a rebellion from people on the progressive side of society. It could stimulate a rebellion from the working class, stimulate a rebellion from young people who won’t sit still as their democratic rights are negated.
The reason I think the right some parts of the right-wing have turned against Moore is they saw what happened with the with the abortion ruling, that Dobbs decision that ended Roe v. Wade and wiped out abortion rights. What was the actual outcome? In many places, young people and especially young women, came out in record numbers to vote against right-wing Republican candidates.
During the midterms, why was there not a red wave of Republican victories, even though Biden is so unpopular? It’s because a lot of people voted, not because they cared about Biden or even cared about the Democrats, but they were voting against the Republicans and against the right-wing because the Dobbs decision was a wake up call.
The eradication of abortion rights had the opposite impact of what was intended, it stimulated resistance. And if the right goes forward now and upholds Moore’s argument and the independent state legislature theory, the overreaching efforts to negate democracy could actually lead to a revolutionary explosion in the United States.
That’s what happened in the 1970s. That’s how the civil rights movement grew. That’s why democratic rights were achieved in the first place. Abortion rights and civil rights and workers rights are a result of the struggle of workers and the struggle of women and the struggle of Black people.
I think parts of the right-wing in the ruling class have now been warning the Supreme Court, don’t go all the way, it’s going to backfire. If you look at history, revolutions often happen when the ruling class overreaches, when they constantly attack and assault the basic rights of the people, such that finally people who are normally not political become very political, and mobilize. And once the masses of people enter the historical process, there’s no power greater.
“The Supreme Court vs. Democracy” by Brian Becker is now available for purchase.