This month, the Supreme Court heard oral arguments in Moore v. Harper, which threatens to undermine fair elections by allowing state legislatures unrestricted power to gerrymander congressional districts.
After the 2020 census, North Carolina’s Republican-controlled state legislature redrew congressional districts to maximize Republican victories, only to have a divided state Supreme Court invalidate its map because of its naked partisanship. In Moore v. Harper, the legislature claims that the court’s ruling is forbidden by Article I, section 4 of the U.S. Constitution, which reads, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature, thereof.”
This effort to deny judicial oversight in drawing congressional districts is a version of the independent state legislature theory, the most publicized iteration of which was the effort of Donald Trump’s unscrupulous lawyers to give state legislatures the power to name presidential electors that overturned the popular vote. But Trump’s efforts contravened existing state laws.
What gets lost in the more substantive debates over Moore v. Harper is that history provides an example of a path not taken. In the years after the Civil War, a once-prominent North Carolina Republican laid the groundwork for an approach to protecting voting rights that is at complete odds with today’s Republican demands. Indeed, if Congress had heeded the advice of Albion W. Tourgée 132 years ago, Moore v. Harper would not exist.
After fighting to save the Union and eliminate slavery in the Civil War, Tourgée moved to North Carolina, where he spent 14 years fighting the Ku Klux Klan and trying to institute a republican form of government that guaranteed rights for African Americans. In 1868 he helped write a new state constitution, adding its prohibition on “secession.” He was extremely wary of unbridled power in the state legislature, as evidenced by the ban he included on “discrimination by the State because of race, color, religion, or national origin.” Tourgée tried to check state legislative power further with a provision that insisted on the separation of “legislative, executive, and supreme judicial powers” along with one that stressed, “All political power is vested and derives from the people.”
By 1870 white supremacists had regained control of North Carolina. That year, the states ratified the Fifteenth Amendment, plainly prohibiting infringement upon the right to vote because of “race, color, or previous condition of servitude.” Yet, Tourgée experienced firsthand the impotency of congressional legislation to enforce it in the face of widespread intimidation of African American voters in the South. That intimidation allowed Democrat Grover Cleveland to win the presidency in 1884 and install ex-Confederates in his Cabinet.