Moore v. Harper and Marc Elias's Curious Idea of 'Democracy'


Category:  Op/Ed

Via:  vic-eldred  •  2 weeks ago  •  16 comments

By:   David B. Rivkin Jr. and Jason Snead (WSJ)

Moore v. Harper and Marc Elias's Curious Idea of 'Democracy'
Democratic lawyers seek to hijack elections via state judges. The Supreme Court has a chance to stop them.

S E E D E D   C O N T E N T

Marc Elias, the leading Democratic election lawyer, complains that "a dangerous theory will have its day in court" this fall. That's rich—he was instrumental in bringing it there by litigating the case that raises it. But his dire warnings have attracted plenty of support. The headline of a Washington Post op-ed by a trio of legal scholars blares the threat of a "body blow to our democracy."

Moore v. Harper is the product of a nationwide campaign, led by Mr. Elias, to mow down state election laws that make it easy to vote but hard to cheat. That effort is a large part of the reason the Supreme Court felt the need to weigh in.

After North Carolina gained a House seat in the 2020 census, the state’s Republican-controlled Legislature drew a new congressional map. Mr. Elias and his clients petitioned state courts to toss out that map as unduly partisan in violation of the state constitution—a legal theory the North Carolina Supreme Court had rejected as unworkably open-ended in 2015.

This time, citing a handful of clauses plucked seemingly at random from the North Carolina Constitution, the state supreme court invented a new, judicially enforceable prohibition on so-called partisan gerrymandering. It used this newfound power to toss out the Legislature’s map and replace it with one of its own design, along the lines Mr. Elias’s experts proposed.

Which brings us—and Mr. Elias—to the U.S. Supreme Court. The U.S. Constitution’s Elections Clause provides that the “manner” of conducting congressional elections must be “prescribed in each state by the legislature thereof.” As Justice Samuel Alito has noted, the clause “specifies a particular organ of a state government.” It doesn’t assign this authority to the state as a whole. That necessarily limits the power of state courts and executive-branch officials to override lawmakers’ handiwork.

Until about a decade ago, state legislatures were in the driver’s seat on election laws. But as Republicans took majorities in state capitals around the country, Democrats bowed out of the legislative process, turning to state officials and state courts instead. Through backroom deals, they persuaded election officials to drop ballot-integrity regulations, open up drop boxes, and loosen deadlines. When deal-making didn’t work, they asked state courts to rewrite election laws wholesale, typically based on vague language in state constitutions like the declaration in North Carolina’s constitution that “all elections shall be free.”

The pandemic accelerated this process in 2020. Through settlements and litigation, Mr. Elias and his colleagues wielded a massive budget to sustain a campaign of litigation that forced states to adopt Democratic election-law priorities against the will of the legislature. Covid became an excuse to upend the law, but the end result was widespread chaos driven by ever-shifting rules intended to benefit one side.

Harper v. Hall,  as the North Carolina case was styled in state court, was the next logical step. If state courts are willing to draft their own election codes, why not their own maps too? Never mind that years of litigation had proved, as the U.S. Supreme Court observed in  Rucho v. Common Cause  (2019), another case from North Carolina, that there is no “clear, manageable, and politically neutral” legal standard for partisan-gerrymandering claims.

That was a federal case, so it didn’t address the limits on state judges’ power. Moore  gives the justices an opportunity to do so, with respect to voting rules as well as redistricting. The idea that honoring the Constitution’s limits on state judicial power is a threat to democracy is risible. When state legislatures make laws governing federal election law, their power is subject to all the limitations of the U.S. Constitution and federal statutes, including the 15th Amendment and the Voting Rights Act, which prohibit racial discrimination.

The shrillest critics of the appeal in  Moore  assert that state legislatures simply can’t be trusted and have to be closely supervised by state supreme courts. They point to  Donald Trump ’s failed attempts to work state legislatures to swing the vote in his favor following the 2020 election, by disregarding the Election Day result and appointing pro-Trump electors. Yet no state legislature did Mr. Trump’s bidding. No state election law on the books today gives state legislatures an open-ended power to disregard the popular vote and appoint presidential electors, and there’s no indication of any serious attempt to enact such a law.

Further, it would violate federal law. Like the Elections Clause, the Electors Clause, which governs presidential elections, gives state legislatures power to set the “manner” of choosing presidential electors. But that power is tempered by Congress’s authority to set “the time of choosing the electors.” Federal law plainly states that presidential electors “shall be appointed” on Election Day. So although a state legislature has broad leeway in setting the rules for the presidential vote, it can’t change the rules, or nullify the voters’ decision,  after  Election Day.  Moore  won’t change that.

Moore ’s real threat is to partisan election lawfare and the gravy train that the Elias Law Group, 70 attorneys strong, is riding. The real threat to democracy is cynical “voting rights” litigation brought to sway election outcomes and the many ways that it undermines the administration of the vote and public confidence in the electoral process. And what could be fairer or more neutral than following the Constitution, or more democratic than leaving the matter to elected lawmakers?

Mr. Rivkin practices appellate and constitutional law in Washington. He served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush. Mr. Snead is executive director of the Honest Elections Project.


jrDiscussion - desc
Vic Eldred
Professor Principal
1  seeder  Vic Eldred    2 weeks ago

They want to keep changing voting rules with judges.

Professor Participates
1.1  Jasper2529  replied to  Vic Eldred @1    2 weeks ago

Mandatory, unrequested vote by mail was an unnecessary disaster in the 2020 election ... especially for states that never had vote by mail (except for their traditional, requested absentee ballots).

It wouldn't surprise me if it happens again for this midterm and again in 2024.  

pat wilson
Professor Guide
1.1.1  pat wilson  replied to  Jasper2529 @1.1    2 weeks ago

Where is "vote by mail" mandatory ?

Professor Principal
1.1.2  Tessylo  replied to  pat wilson @1.1.1    2 weeks ago

Some folks just make up stuff as they go

Professor Participates
1.1.3  Jasper2529  replied to  pat wilson @1.1.1    2 weeks ago
All told, 37 states modified their absentee/mail-in voting procedures for the general election. These modifications can be divided into five broad categories. Here’s a recap of all of the changes made throughout 2020.

  Automatic absentee/mail-in ballots : Five states (California, Montana, Nevada, New Jersey, and Vermont) automatically sent absentee/mail-in ballots to all eligible voters.

  Automatic mail-in ballot applications : Eleven states (Connecticut, Delaware, Illinois, Iowa, Maryland, Michigan, Nebraska, New Mexico, Rhode Island, South Dakota, and Wisconsin) automatically sent absentee/mail-in ballot applications to all eligible voters.

Further breakdowns from Computer Network ...

Professor Participates
1.1.4  Jasper2529  replied to  Tessylo @1.1.2    2 weeks ago

See comment 1.1.3  before you accuse me of making things up again.

Professor Principal
1.1.5  Tessylo  replied to  Tessylo @1.1.2    2 weeks ago

Like I said.  Some folks make up stuff as they go . . . . 

Professor Principal
1.1.6  Tessylo  replied to  pat wilson @1.1.1    2 weeks ago

"Where is "vote by mail" mandatory ?"  

It's not.  Anywhere

Professor Participates
1.1.7  Jasper2529  replied to  Tessylo @1.1.6    2 weeks ago

With some further research, you would have learned that in 2020, quite a number of states did not allow in-person voting due to the pandemic. Therefore, all eligible voters were sent ballots and were forced to either mail them in or put them in drop boxes. Some states weren't used to this new, mandatory method and sent voters 2 or more ballots. By the way, it was the governors of those states who changed voting rules ... not state legislatures - and that is unconstitutional.

I'm sure you can find articles about this, because it was all over the news in October, 2020.

Professor Principal
1.1.8  Tessylo  replied to  Tessylo @1.1.6    2 weeks ago

No matter what some say, no one was forced to do anything.

Professor Participates
1.1.9  Jasper2529  replied to  Tessylo @1.1.8    2 weeks ago

Well of course people weren't forced to vote ... what a silly idea! The point is that if eligible voters CHOSE to vote, their only option was to vote by mail instead of a more secure in-person voting method. 

I hope I've made myself perfectly clear, Tessy. Good-bye.

Professor Principal
1.1.10  Tessylo  replied to  Jasper2529 @1.1.9    2 weeks ago

What makes 'in person voting' more secure?

No, that wasn't their only option.  They could put it in a drop box.  That's not being forced to vote by mail or by any means.  

Professor Participates
1.1.11  Jasper2529  impassed  Tessylo @1.1.10    2 weeks ago
pat wilson
Professor Guide
1.1.12  pat wilson  replied to  Jasper2529 @1.1.3    2 weeks ago

Voting in person was/is an option in every state, that's why I asked.

Professor Principal
1.1.13  Tessylo  replied to  pat wilson @1.1.12    2 weeks ago


PhD Principal
2  Nerm_L    2 weeks ago

Courts are the exact opposite of democracy.  Using courts to manipulate democracy is nothing short of a power grab.  The two parties constantly running to the courts is nothing less than attempt to outlaw third parties and do away with independent politics.

Autocrats don't defend democracy.  And autocratic courts meddling in democracy will only result in an autocracy.  Hopefully the current SCOTUS will limit the ability of courts to arbitrarily meddle.


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