OPINION:
Recent court rulings against the Democrats’ legal assaults on fair, honest and open elections could spell trouble for Democrats’ master strategy to use lawfare for political advantage.
In 2017, when control of the Virginia General Assembly was at stake, Marc Elias — the partisan Democratic lawyer sanctioned by the 5th U.S. Circuit Court of Appeals for violations of the ethical guidelines covering a lawyer’s conduct — sued to overturn the result of a valid election, used political operatives to pressure the state board not to certify election results, and deployed lawyers seeking to prevent the counting of a single legal vote that could sway the outcome of the pivotal election. Mr. Elias’ unhinged legal assault resulted in a strong rebuke from a panel of judges objecting to the legal strategy.
When the court finally stopped these partisan tactics and ruled in favor of the Republican candidate, it wrote: “The right of a citizen to cast a free vote has been secured to us by the blood of patriots shed from Lexington and Concord to Selma, Alabama. The manifest injustice against which we must always guard is the chance that a single vote may not be counted.”
Instead of taking the court’s message to heart, Mr. Elias, the lead counsel in those matters, doubled down on shaky legal theories to do whatever he could to tilt the electoral playing field so Democrats could have an advantage at the ballot box.
Although lower courts sometimes acquiesce to pressure from the media and lawyers on the left, appellate courts — often led by judges appointed by Democrats — are pushing back against these fringe legal arguments that threaten state election administration regimes. Most recently, this fight came to Pennsylvania.
The legal battle in Pennsylvania revolved around an expansive reading of the Materiality Provision of the Civil Rights Act of 1964 pushed by national Democrats. Congress enacted the provision to outlaw tactics used by Southern Democrats through the mid-1960s to prevent minorities — mostly African Americans — from registering to vote.
For example, the Materiality Provision prevented states from requiring that a person interested in voting list the exact number of months and days in his age or be prevented from registering. Put another way, the Materiality Provision prevents unduly restrictive laws on who may register to vote; it does not prohibit valid election integrity laws that govern the casting of a ballot.
Recently, the 3rd U.S. Circuit Court of Appeals, in Pennsylvania State Conference of the NAACP v. Schmidt, rejected the interpretation of the Materiality Provision advanced by the Democratic National Committee. Had the court sided with Democrats, states would not be able to require that qualified voters vote for one candidate per contest, mark ballots with pens or pencils (not crayons), use a standard envelope to mail ballots, or signify on absentee envelopes that a ballot is enclosed.
This panel of judges, entirely appointed by Democrats, affirmed a state’s ability to protect the integrity of elections by upholding essential state voting rules that give voters confidence that elections in our country are fair, honest and open.
But the fight won’t stop in Pennsylvania. Lawyers from the Democratic Party have virtually unlimited funding to fight on all fronts. Whether the money comes from liberal billionaires such as George Soros and Swiss citizen Hansjorg Wyss, or so-called good government groups like Eric Holder’s National Democratic Redistricting Committee, which is purportedly “working to protect fair maps” and “combat ongoing gerrymandering,” the result is the same: an endless barrage of legal volleys against fair, open and honest elections.
In reality, these funders, as Mr. Holder’s committee admitted to the IRS, are working to “favorably position Democrats,” not to protect the right to vote.
Although the Democratic Party has mostly moved past Mr. Elias because of his big bills and even bigger self-promoting online persona, this unlimited funding allowed him to file suits regarding an expansive reading of the Materiality Provision in states in nearly every federal circuit court of appeals. But the 3rd Circuit’s ruling spells trouble for all these cases.
And while Mr. Elias has been marginalized by the Biden White House, many law firms and lawyers are looking to take his place as the lead lawyers for the Democrats.
This new brand of lawyer will continue to try to radically reshape state election integrity laws through litigation rather than the legislative process by using theories and tactics that fall outside the mainstream. As the court in Virginia found in 2017 in deciding to accept a single vote that Democratic lawyers attempted to prevent from counting: “It matters not the importance of the disposition of a ballot in a given election; it matters the dignity of the citizen, the integrity of the electoral process and the destiny of our constitutional republic.”
Thank goodness the appellate courts are putting black-letter law above politics and supporting the election integrity initiatives that give voters confidence in the American system.
• Trevor Stanley is an attorney who specializes in political law. He is also vice president for election education at the Republican National Lawyers Association.
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