By David B. Rivkin, Jr., and Jason Snead
August 1st, 2022, in the Wall Street Journal
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.