‘Common Law’ Explores a Supreme Court Case That Could Rewrite Democracy

Professor Bertrall Ross Discusses Moore v. Harper, a Test of the Independent State Legislature Doctrine
Podcast guests

Images by Julia Davis, Ian Bradshaw and iStock/illustration by Warren Craghead

November 3, 2022

State courts traditionally play a role in ensuring that federal elections run in accordance with federal and state laws. A case now before the U.S. Supreme Court could upend that tradition and ramp up partisan gerrymandering, says Professor Bertrall Ross on the latest episode of “Common Law,” a podcast of the University of Virginia School of Law.

The case, Moore v. Harper, will test a theory that state legislatures independently hold the power over elections. Ross joins hosts Dean Risa Goluboff and Professor John Harrison to discuss the issues at stake and what could happen if the justices agree that the judicial role in electoral oversight should be reduced.

Moore v. Harper was appealed to the Supreme Court after the North Carolina Supreme Court struck down the state’s recently redrawn congressional map, which heavily favored Republicans, for violating the North Carolina constitution. After state courts rejected two maps drawn by lawmakers, a court ordered a special master to create a new map for the 2022 congressional elections. Two Republican legislators then appealed to the Supreme Court to reinstate the lawmakers’ map. The case is scheduled to be argued Dec. 7.

As Ross and the hosts discuss on the show, the case could remove other checks on electors, how electors are chosen and the Electoral College system, in addition to affecting how elections are certified — contentious issues in the 2020 presidential election.

Ross, the Thurgood Marshall Distinguished Professor of Law at UVA, is a director of the Law School’s Karsh Center for Law and Democracy. Ross teaches and writes in the areas of constitutional law, constitutional theory, election law, administrative law and statutory interpretation, with a focus on democratic responsiveness and accountability, as well as the inclusion of marginalized communities in administrative and political processes.

Among Ross’ current projects is a new course sponsored by the Karsh Center, Designing Democracy, that explores whether vouchers and other incentive systems could encourage low-income voters to participate in elections. Students in the course will propose model legislation based on data and research they collect.

In a continuation of last season, called “Co-Counsel,” the podcast’s fifth season has returned with Goluboff and four rotating co-hosts: Harrison, Danielle CitronCathy Hwang and Gregory Mitchell. Each will join Goluboff to discuss cutting-edge research on law topics of their choice.

“Common Law” is available on Apple PodcastsStitcherYouTubeSpotify and other popular podcast sources. The show is produced by Emily Richardson-Lorente.

Past seasons have focused on “The Future of Law,” “When Law Changed the World” and “Law and Equity.”

You can follow the show on the website CommonLawPodcast.com or Twitter at @CommonLawUVA.

Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.

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