I don’t imagine the writing of a 44-page legal brief on the history of U.S. election law tracing it all the way back to the founding of the country would make riveting television. Still, I’d love to have been in the room, or watching a live stream, when U.S. Solicitor General Elizabeth Prelogar wrote this one line in her brief to the Supreme Court in the Moore v. Harper case:
And all of petitioners’ theories would severely disrupt the administration of elections around the Nation, forcing States to hold state and federal elections under different rules and flooding the federal courts—especially this Court—with new election challenges.
In its original legalese, it’s not captivating literature. But in plain English, that sentence captures the threat posed by decades of conservative efforts to neutralize legislative and judicial protections against racial and other discrimination in elections. Moore is the latest, most inventive of those efforts to date, and definitely the most dangerous.
South Carolina’s Republican state lawmakers are arguing that any rules the state legislature makes about elections aren’t subject to judicial review. The case was filed after a judge tossed out a heavily gerrymandered voting map, ruling that it violated the Voting Rights Act (which Republicans have also been working to weaken at the national level) by packing Black voters into a small number of districts, thus diluting their overall voting power.
That’s where Prelogar’s sentence comes in. Throughout her brief, she dismantles the argument that the constitution gives the sole power over elections to state legislatures with no ability by the courts to review their decisions. But in this one sentence, she lays out exactly what Republicans are really trying to do: Subject every election in the country into chaos, thus further undermining trust in the system overall.
Under the current thinking in the Republican party, the only thing better than being able to control elections at the state level without fear of judicial intervention is the ability to tie them up—to severely disrupt the administration of elections around the nation, as Prelogar states. It’s a page straight out of the Trump campaign strategy in 2020; as you may recall, having been stomped out in the general election, the ex-president and his legal team took to the courtrooms and flooded the zone with lawsuits—none of which had merit, but all of which helped plant the seeds of distrust that peaked with the hooligans who overran the Capitol 20 months ago.
Six of the current justices on the Supreme Court are conservatives, with three having been appointed by Trump himself. If there ever was a time when conditions might be favorable for a case like Moore to be put in front of the court, it’s now. Hopefully, all nine justices, but especially those six, will give that one sentence a good read.
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