I previously wrote about the Left’s disinformation campaign surrounding Moore v. Harper, the election redistricting case sparked by a brazen exercise of judicial invention by the North Carolina Supreme Court. Recall that that court drew from the state constitution’s open-ended free elections clause and other provisions that did not even mention elections to embroider a rule against partisan gerrymandering—and used that pretext to strike down the congressional map passed by the state legislature and have the state courts draw up their own map. The U.S. Supreme Court has been asked to intervene because Article 1, § 4 of the Constitution assigns the regulation of the “Times, Places and Manner of holding” congressional elections not to state courts, but to “the Legislature thereof.” Oral argument will take place on Wednesday.
The reason the Court has taken this case is straightforward even though—perhaps because—the issue is a novelty. The North Carolina Supreme Court’s decision, by a divided court falling along partisan lines, represents a usurpation of the legislative authority that is not to be found in state supreme court decisions for most of American history until recently. And the loudest protests of the prospect of the U.S. Supreme Court overriding this state judicial activism come from the Left’s well financed litigation operation that drove this recent trend.
The amicus brief of the Democracy Fund discusses this phenomenon—“what academics (including those in favor of this trend) have called ‘a burgeoning field of litigation involving election administration.’ And, as the term ‘burgeoning’ implies, that trend is new, dating back to, in the most generous telling, the 2000 presidential recount.” (Citation omitted.)
As part of this trend, ideologues on the Left treated state courts as a way to override the normal instruments of democratic governance when they could not attain their policy preferences—as they repeatedly could not—in state legislatures and in Congress. They sought a variety of election law changes, from disregarding statutory deadlines to throwing out district maps—that is, when those maps seemed to disadvantage Democrats. They were fine with states that favored Democrats at the expense of Republicans. They asked state courts to rewrite election laws to get their way.
The Democracy Fund brief observes, “Advocates for this trend freely acknowledge the theories they espouse are rarely to be found in state constitutions, nor are they readily discernible through ordinary interpretive methods.” Their goal is to “put like-minded individuals on state courts and expect their goals to be achieved irrespective of what state constitutions provide.” The fruit of “[t]his boundless theory” is “incessant litigation, as the only limiting principles are the partisan aims of those bringing cases and the ideology of judges in the states where they file suit.”
There is big money in the Left’s litigation operation. Marc Elias, the top Democratic election lawyer, ran the political law group at Perkins Coie, which was paid over $49 million from liberal political groups during the 2020 election cycle. Elias brought over 200 pre-election lawsuits. In 2021, he formed the Elias Law Group explicitly as a “mission-driven firm committed to helping Democrats win . . . and progressives make change.” The Democracy Docket, Elias’ political action group formed in 2020, echoes demagogic cries of voter suppression and other hyperbole in the service of their cause. It is a creature of the behemoth liberal dark-money Arabella Advisors network, with its action fund and legal fund respectively projects of the Arabella-connected North Fund and Hopewell Fund. Bullying party bosses may be a relic of the past, but Elias’ litigation machine holds its own as a successor to the old political machines.
The Democracy Docket spouts the Left’s widely echoed talking point that overturning the North Carolina Supreme Court’s power grab in Moore v. Harper would pave the way for a state legislature to overturn a presidential election after election day—a fallacy I discussed previously. A recent article appearing on the Democracy Docket website does all it can to cast what has become known as the “independent state legislature theory” into a “fringe theory” that it tied into the efforts to change the results of the 2020 election in court.
But it is the Democracy Docket that thrives on fringe legal theories, and fringe theories yield outlandish predictions. None of the lawsuits concerning the 2020 election changed the results in any state, and it did not matter to the outcome of the various cases whether President Trump or another president appointed the judge(s) making the decisions. Amicus briefs in Moore—and even a commentary by one election law expert who submitted his own brief siding with the state supreme court on other grounds—have joined the chorus of saner voices debunking the overturned presidential election doomsday myth touted by those who reject legislative prerogative. A win for the North Carolina legislators in Moore would be a loss for the fringe legal theories running amok in Mark Elias’ orbit. And that could go a long way toward preventing his litigation machine from wreaking further havoc regarding state election laws across the country. That would be a good thing for democracy.