On Wednesday, following oral arguments in the massive Moore v. Harper Supreme Court case that could dramatically change how U.S. elections are conducted, voting rights attorney Marc Elias analyzeda crucial “mistake” made by the Republican-aligned lawyer on his “Democracy Docket” media platform that might cost them the case.
The case, centering on the decision by the North Carolina Supreme Court to strike down a gerrymandered congressional map, seeks to have the Supreme Court adopt “independent state legislature theory” — a radical proposal that state legislatures have unreviewable power to set election law and cannot be overruled by state courts, even when they violate state constitutions. But, wrote Elias, the Republican-aligned counsel went too far, and failed to read the room in the face of skepticism from even conservative justices.
“One of the big questions I had before this argument was how broadly the Moore lawyer would argue the case. And he went very broad, arguing from the start that ‘there can’t be a limit on the [state legislature’s] power’ to regulate congressional elections ‘because it’s a federal function.’ In practice, that would mean that state courts could not strike down state laws pertaining to federal elections for violating their state constitutions,” wrote Elias. “In retrospect, this decision by the Moore lawyer to take an absolutist position against state court review may well prove to be a mistake.”