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Melissa Harris-Perry: Welcome to The Takeaway. I'm Melissa Harris-Perry. For more than three hours on Wednesday, the US Supreme Court heard oral arguments in the case of Moore v. Harper.

Speaker: I'm not rewriting history, Your Honor. What we're saying is that when it says all elections, it's referring to the offices that were created by that constitution. You can see that in Vermont.

Melissa Harris-Perry: I know, that didn't really help you know what it's about. Let's be honest, Moore v. Harper is complicated. It's confusing, and it's really important. Hold on a second, because I'm going to put on my professor hat here. Because we're going to do a little American politics oh 101. All right, folks, there are three branches of government, legislative, executive, and judicial. There are two primary levels of government, federal and state.

The three branches of government operate on both levels. At each level, the three branches are co-equal, with power divided and shared between them. All right, if you're still not quite with me, maybe this little 1979 tool from Schoolhouse Rock can help.

[playing Schoolhouse Rock]

No one part can be

more powerful than any other is.

Each controls the other you see,

and that's what we call checks and balances.

Well, everybody's act is part of the show,

Checks and balances. It's all coming back to you now, right? On its face, Moore v. Harper is a case about gerrymandering, about how we draw congressional districts, but at its heart, this is a case about how American democracy works. You see, after the 2020 census, the Republican-dominated General Assembly in North Carolina drew new political maps that overwhelmingly favored Republican office seekers. The maps were so troublesome that several voter advocacy groups challenged them in court.

After hearing the case, the North Carolina Supreme Court ruled that the maps violated the North Carolina constitution and the state justices told the state lawmakers to go back and try again, which they did a few times until finally settling on the maps that were just used in last month's midterm elections. That's two branches of government here, the legislative and judicial, all operating at the same level, the state, still with me? Here is where it gets kind of wild because North Carolina's Republican lawmakers were not happy about being told to redraw their map.

They're now advancing a fringe theory that the federal constitution grants to them and to them alone, the right to manage elections. They've brought this case to the Federal Court arguing that the state Supreme Court was way out of its lane when it threw out their maps. Now, this is the legislative branch at the state level appealing to the judicial branch at the federal level, asking them to tell the judicial branch at the state level to stay out of their business, because as far as they're concerned, the legislative branch at the federal level has given them all the power, or as plaintiff's attorney David Thompson argued yesterday.

David Thompson: States lack the authority to restrict the legislature's substantive discretion when performing this federal function.

Melissa Harris-Perry: One way you could translate this is, "Mom, can you please tell the North Carolina Supreme Court that my great-grandpa left me in charge of the elections and they just have to do what I say?" As confusing and sometimes absurdly convoluted as this three-dimensional three-ring circus is, it's also a really big deal. How the court decides Moore v. Harper will have a meaningful implication for American democracy. Here's Justice Kagan, during Wednesday's oral arguments.

Justice Kagan: It would say that if a legislature engages in the most extreme forms of gerrymandering, there is no state constitutional remedy for that, even if the courts think that that's a violation of the Constitution. I think what might strike a person is that this is a proposal that gets rid of the normal checks and balances, on the way big governmental decisions are made in this country.

Melissa Harris-Perry: Joining me now is Allison Riggs, co-Executive Director and Chief Counsel for voting rights for the Southern Coalition for Social Justice. Allison, thanks for coming on the takeaway.

Allison Riggs: Thanks for having me, Melissa.

Melissa Harris-Perry: Also with us is Ari Berman, a senior reporter at Mother Jones. Ari, thanks for being here.

Ari Berman: Hey, Melissa, always great to talk to you.

Melissa Harris-Perry: Allison, let's start with you. What is this fringe theory this independent state legislature theory?

Allison Riggs: First, let me say there are about 18 versions of this fringe theory floating around, and Mr. Thompson and his friends in the North Carolina General Assembly can't seem to settle on one of them, which was part of why yesterday's arguments lasted three hours, but at the core, it's a theory that the founders gave all of the power for redistricting and for running federal elections to the state legislatures and the state legislatures alone, even though the founders knew that judicial review was a critical part of how government at the state and federal level worked.

It's a silly argument because the founders in the Constitution mentioned Congress countless times without every single time explicitly saying, Congress is subject to review by the United States Supreme Court but in essence, they want an unchecked unfettered legislature who can make rules for federal elections, including districts where the protections of the state constitution have no effect.

Melissa Harris-Perry: It seems to me that that desire for the state legislature to have that power is also a path-dependent piece based on this aspect of gerrymandering. Ari, I want to come to you on this, because I want you to help us to understand and remember a bit what happened in North Carolina following the 2020 census, and what those maps created that would then make, again, the state legislature want to have all that control.

Ari Berman: The maps drawn by the North Carolina General Assembly would have given Republicans anywhere from 71% to 78% of US House seats in a state that is basically 50/50. What the North Carolina Supreme Court did is they struck that map down, and they put in place a map that led to a seven-seven, an even split that more accurately reflects the demographics of the state. The reason why Republicans are asking for state legislatures to have this unfettered authority is because the power for so many Republicans rests in these heavily gerrymandered legislatures.

The legislatures have been gerrymandered not just since 2020, but in many places since 2010, in North Carolina, in Wisconsin, in Ohio. We used to think of the states as famously laboratories for democratic experimentation. More recently, they've become laboratories for rolling back democracy, for rigging democracy. The two places where Republicans have been most successful in rigging the political system have been the state legislatures and the US Supreme Court. Of course, now they want the Supreme Court to give all the authority to state legislatures because then they can consolidate their influence in these two parts of government where they have the most power right now.

Melissa Harris-Perry: Allison, there is three branches in the two levels. On the one hand, if we do read the justices, primarily as ideologues or primarily as partisans, then that connection between the state legislatures and the federal bench makes sense to me but if we read them as potentially, interested in their branch of government, then wouldn't they be reluctant to strip state courts from this capacity to oversee state legislatures relative to elections?

Allison Riggs: You're exactly right, which is why this case has been so frustrating to us. If you take the justices at their judicial philosophy and their precedent, this is a case that should give them great qualms. Four years ago, I argued the partisan gerrymandering case that came out of North Carolina route to the common cause. It's important to remember this case didn't start last year, this has been the culmination of almost 15 years of back-and-forth tug and pull on power in state legislatures and Congress in North Carolina.

Three years ago, when the Supreme Court issued the Rucho opinion, all nine justices said, "Partisan gerrymandering is a pernicious problem, we're not condemning you to scream into the void, here are two options that you have. You can go to Congress or you can look to state constitutions as interpreted by state courts for protections from partisan gerrymandering."

The elections clause existed three years ago. It's not plausible to me that the court didn't understand the implications of what it said but at core too, when the US Supreme Court decided it didn't want federal courts taking up the issue of partisan gerrymandering, it said, "Look, we're one court, there are 50 states. This is a very political issue. It's nuanced by state. We want to decentralize and de federalized dealing with this problem."

There's a 10th amendment aspect to this that should be eminently in the court's mind that this is something that should be left to the states to deal with. Then if you look at the elections clause, there isn't a textualist or an originalist interpretation of the clause that doesn't support letting judicial review as it normally happens happen in these cases. It's just very challenging because knowing these justices, how they've ruled, what their judicial philosophy is, this really should not be a close case.

Melissa Harris-Perry: Ari, can you just lay out for me this notion that partisan gerrymandering is a pernicious problem? What has happened in this country over the past 20 years relative to partisan gerrymandering?

Ari Berman: Gerrymandering has gotten a lot worse, and it really got a lot worse after the 2010 election when Republicans took control of so many key states, so many key battlegrounds like North Carolina, Wisconsin, Ohio, Pennsylvania, et cetera. They took those states over with the explicit goal of gerrymandering them to basically reduce any competition, to essentially turn swing states, purple states into deep red states at the state legislature. They've been remarkably effective at that. In some places the composition has changed, but in some places, the composition hasn't changed at all. Republicans still control the general assembly of North Carolina. They still control the general Assembly of Wisconsin, even as lots of other statewide races, which are not gerrymandered have shifted.

Gerrymandering is such a big deal because when republicans control the state legislature, they have power to do so many other things. That's why it matters. They have power to restrict a woman's right to choose. They have power to let anyone carry a gun wherever they want. They have power not to expand Medicaid or do all these other popular things, and they're basically insulated from any political competition, any kind of accountability. If they do unpopular things, there's very little recourse to challenge that. What's so distressing about this case is the Supreme Court is already said that you can't challenge partisan gerrymandering in federal court.

If they say you can't challenge partisan gerrymandering in state courts, or they make it very difficult to do so, there's basically no recourse to challenge gerrymandering at all at the federal or state level, that turns state legislatures into king-like authorities. When you have king-like authority, you are going to act like a king or a queen and probably not a benevolent one. It's going to open the door to even more anti-democratic actions by these state legislatures if they get their way in this case.

Melissa Harris-Perry: Okay. You two, we're going to take a quick break right here, but everybody, stay with us. I know it's a complex case, so we've got more of this on The Takeaway when we come back. We're back on The Takeaway continuing our conversation about the case of Moore v. Harper, which the Supreme Court began hearing yesterday in oral arguments. Still with me are Allison Riggs, co-Executive Director and Chief Counsel for voting rights for the Southern Coalition for Social Justice, and Ari Berman, senior reporter at Mother Jones. Also, I'm going to take a moment and listen here to Judge Ketanji Brown Jackson during the oral arguments yesterday.

Judge Ketanji Brown Jackson: I guess what I'm a little worried about is the suggestion that when the legislature is exercising legislative authority in this context, it does not have to adhere to any state constitutional constraints on its power when it's the state constitution that gives it its power and tells us when it is appropriately acting as the legislature, not just with respect to the issue of elections, but in general.

Melissa Harris-Perry: All right, Allison, I want to come to you on this because I wonder, many folks who are politically engaged may know the Federal Constitution. Not everybody knows or has taken a moment to read their state constitution. I'm a North Carolinian these days, and I must say I really do like an awful lot of what's in the North Carolina state constitution. When I hear Justice Brown Jackson saying, "Look I'm concerned about a lack of state constitutional constraint," I have to say, I'm also worried about that. Can you talk to us a little bit about what makes the North Carolina State Constitution perhaps unique, especially among southern constitutions?

Allison Riggs: Yes, and certainly yesterday Justice Jackson was spot on, and it was wonderful to have her explaining this quite basic concept of you can't separate under the State Constitution who the state legislature is from the work that they do. Because the State Constitution is our organic charter that gives the North Carolina legislature any power to begin with, let alone federal elections power.

It's putting the cart before the horse to talk about what the Federal Constitution allows the legislature to do without understanding, you don't have a state legislature without a state constitution. North Carolina's Constitution very much rests on the principle of popular sovereignty and has been repeatedly interpreted to be what we call a limited grant of power to the government.

That is saying anything that we don't explicitly give away in this constitution is something that the people keep. We have had parts of our constitution, like our free elections clause, that don't have a counterpart in the federal constitution. We have parts of our constitution, like our equal protection clause, that while there is an analog in the federal constitution for 100s of years, our state court has interpreted our state equal protection clause to be more protective of voters and of individuals, not of government, not of the state legislature. That history and that work that our state constitution has done is an important baseline to any discussion about the elections clause.

I think Justice Jackson was trying to bring all of the argument back to this really important starting point and ultimately make the point that, "Look, we get into dangerous ground as a United States Supreme Court when we're trying to second guess state courts interpreting their state constitutions. We've always said they know best. State courts know their state constitutions, and each state from the founding has its own history, its own ways of interpreting its constitution. North Carolina's commitment to anti-gerrymandering dates back to the English Bill of Rights.

When we knew back then when our state founders knew that if you didn't do something like create a fair elections clause, you saw in England parliament being terribly gerrymandered. They had what they called rotten boroughs, which were essentially parts of parliamentary seats that had no people in them. Were dramatically unfair in terms of who got elected and who got represented."

I think she knows this history and was really trying to center the argument on North Carolina's Constitution. Its important text, its important role in creating the legislature. It's a moot discussion to talk about what the legislature can and cannot do until you talk about why does the legislature exist and what does the state constitution, how does it empower them to act?

Melissa Harris-Perry: Ari let's put this down where the goats can get it. If the Federal Supreme Court sides with the plaintiffs here and decides that there is this independent state legislature that has the capacity to control elections without oversight, what might that mean going forward?

Ari Berman: It would give state legislatures just an incredible ability to rig state and national politics. It would allow state legislatures to pass gerrymandered maps free of any political accountability. It would allow them to pass voter suppression laws with basically no oversight by state courts or state officials. It could remove other actors like governors from being able to veto these laws. It could even potentially, and this is the scariest part of the case, embolden state legislatures to try to overturn the popular vote in their states to get more involved in the certification of electors, to substitute their electors for the president for the choice of the people.

Because remember, this is what the Trump campaign was arguing in 2020. It basically said that state officials shouldn't be able to alter voting laws without the consent of the legislature in places like Pennsylvania and Wisconsin. Because of that, the legislatures should have the power to appoint their own presidential electors in defiance of the popular vote. The independent state legislature theory was really the theory advanced by the Trump campaign to try to advance a coup. [chuckles]

That's why it's so chilling here. Now, the North Carolina legislature is saying, "We're not asking for those powers. We don't want to appoint our own electors. We don't want to do that thing." The question is if you granted state legislatures this king-like authority, where would it end?

Melissa Harris-Perry: Ari Berman is a senior reporter at Mother Jones. Allison Riggs is Co-Executive Director and Chief Counsel for Voting rights for the Southern Coalition for Social Justice. Ari, Allison, thank you both for being with us today.

Ari Berman: Thanks so much.

Allison Riggs: Thank you.

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