Writing in his biweekly blog post for the Appellate Advocacy Blog, CCL President Robert S. Peck critiqued the North Carolina legislature's use of misleading history to argue that it should have unfettered discretion to set the federal voting rules in the state.

     The case, Moore v. Harper, forces the Supreme Court to consider the "independent legislature theory" that the federal Constitution designates state legislatures to make federal election rules without scrutiny from the state courts or any limitations imposed by the state constitution.

     The post, History Rewritten to Serve Selfish Ends – and Serve an Argument, explains that North Carolina's reliance on a draft of portions of the Constitution by Charles Pinckney Jr. is misplaced. The so-called draft Pinckney Plan that the state claims demonstrates the Framers' intent that state legislative decisions be unreviewable in the states was debunked by historians and no lesser an authority than James Madison, rightfully called the Father of the Constitution. Instead, as the authors of an article on the issue in Politico explained, the Pinckney Plan was an after-the-fact attempt by Pinckney to claim greater credit than he deserved for participating in the Constitutional Convention. In fact, the "plan" contains language from the Constitution that was only developed late in the Convention and that was at odds with positions Pinckney took during the assemblage. 

     Peck argues that use of such fractured history can generate judicial errors that will perpetuate revisionism that ill serves constitutional government.