Election rigging comes in a whole bunch of flavors. Beyond actual fraud, there’s lawfare.
Vote for politicians who back voter ID and cleaning up voter rolls? Great. They’re elected and they even do it. And then even if the Justice Department doesn’t step in, some leftist group or groups will sue leading to a “settlement” that terminates election reform. Sometimes state and local authorities even secretly collaborate to be sued and then they immediately agree to a “settlement” that ends election reform. Or friendly judges give them exactly what they want.
Take this insane case out of Georgia.
A federal judge in Georgia on Monday ordered two counties to reverse a decision removing more than 4,000 voters from the rolls ahead of the Jan. 5 runoff elections that will decide control of the U.S. Senate.
The judge, Leslie Abrams Gardner — the sister of former gubernatorial candidate Stacey Abrams, a prominent ally of President-elect Joe Biden who has led voter registration efforts across the state — concluded that the counties appeared to have improperly relied on unverified change-of-address data to invalidate registrations in the two counties.
The suit, brought by Majority Forward, represented by National Democratic Party attorney Marc Elias, followed an effort to challenge the lengthy roster of voters simply because their registrations appeared to match U.S. Postal Service change-of address records.
Abrams Gardner, whose husband was just busted for human trafficking, refused to recuse.
Marc Elias has built an empire out of election litigation, but the Dems are moving beyond him and there’s a massive infrastructure of election lawfare in place, ready and waiting for 2024.
But what if private parties couldn’t just sue?
Remember, courts decided that none of the conservative litigants in 2020 had standing. Among all the various reasons is that the Voting Rights Act was really systemic political discrimination posing as civil rights legislation. It allowed Democrats to rig elections and to seize control of state electoral practices. But the VRA was never meant to allow private parties to conduct election lawfare. And a nuclear bomb just went off on election lawfare in the 8th circuit.
U.S. District Judge Lee Rudofsky, an appointee of former President Donald Trump, ruled in February 2022, however, that only the head of the Justice Department, the U.S. attorney general, can bring Section 2 lawsuits and dismissed an Arkansas redistricting case brought by advocacy groups representing black voters in the state.
On Monday, that lower court ruling was upheld in a 2-1 vote by a three-judge panel of the 8th U.S. Circuit Court of Appeals, whose rulings apply to Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.
“For much of the last half-century, courts have assumed that [Section 2] is privately enforceable. A deeper look has revealed that this assumption rests on flimsy footing,” wrote Circuit Judge David Stras, a Trump appointee, in the majority opinion joined by Judge Raymond Gruender, an appointee of former President George W. Bush.
The law is actually fairly straightforward, as the decision notes.
The who-gets-to-sue question is the centerpiece of today’s case. The Voting Rights Act lists only one plaintiff who can enforce § 2: the Attorney General…
Greater clarity exists on the private-remedy question. Everyone agrees that § 2 itself contains no private enforcement mechanism. All it does is specify what is unlawful: a “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen . . . to vote on account of race or color.” 52 U.S.C. § 10301(a). Not who can enforce it.
We must look elsewhere for the who. Another provision, § 12, empowers the Attorney General to bring “an action for preventive relief . . . for a temporary or permanent injunction, restraining order, or other order.” 52 U.S.C. § 10308(d). Any mention of private plaintiffs or private remedies, however, is missing…
It’s a good decision. The VRA itself is broken and widely abused. It’s systemic political discrimination that private lawfare crowdsourced into nationwide election rigging.
But wait a minute.
This is very obviously going to the Supreme Court. And what happens then? I have limited confidence in Gorsuch, Kavanaugh and Amy Coney Barrett who have already racked up a fine collection of betrayals.
And, more specifically, Kavanaugh already colluded with Roberts to keep us under the VRA’s tyranny.
A series of negotiations, most notably between Chief Justice John Roberts and fellow conservative Justice Brett Kavanaugh, transformed what many thought would be a ruling undercutting the Voting Rights Act into a forceful affirmation of the law.
Roberts and Kavanaugh enjoy a decades-old kinship and often confer privately on matters
How is that going to play out here? Quite possibly not so well. The trouble is that when four conservative justices are each a potential swing vote, and they can’t always be predicted, anything can happen.
The 8th circuit decision could fundamentally change election or law… or be shut down by Roberts and whoever he can get on his team.