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IN FOCUS – Lawfare to Win Elections


The term “lawfare” is obviously derived from a combination of the words “law” and “warfare.”  It is used in several contexts, but here it is used to describe the calculated efforts of Leftist organizations and operatives to achieve electoral victories unfairly.  Through lawfare, victory is achieved not through the basic democratic approach of attracting the most votes from qualified voters but by manipulating and perverting the legal system to obtain an unfair electoral advantage.

Pre-2020 Election Rule Changes

The Constitution expressly vests authority in state legislatures to set the rules for federal and state elections.  Article I, Section 4 states: 

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations….  [Emphasis added.]  

State legislatures have done their constitutional duty since the founding of the country without interference.  They determine the rules governing absentee ballots.  They determine the date by which voters must register to vote.  They decide whether a voter must show identification and a host of other issues designed to ensure elections are conducted fairly.  By and large, state courts have understood that they have no role in the process, as the Constitution is clear in having entrusted this responsibility to state legislatures.

And then came COVID.  In the months before the 2020 election, there was an unprecedented avalanche of “lawfare” suits, generally brought by Democrats working with Leftist organizations like the ACLU.  These suits sought at the state level to loosen the rules by which elections are held.  Leftist lawyers took full advantage of the COVID pandemic, demanding courts override state election laws to make voting “easier and safer.”  By August 31, 2020, 245 lawsuits in 45 states against state election integrity laws had been filed on “COVID” grounds alone.  The lawsuits demanded expanded mail-in voting, more early voting, ballot drop boxes, and acceptance of absentee ballots not received until after Election Day.  All of these changes were believed to have created more favorable conditions for Democrat candidates.

The Democrats’ top election lawyer is Marc Elias, who first drew attention after his work orchestrating Al Franken’s recount challenge to Minnesota GOP Senator Norm Coleman, which gained the Democrats the 60-vote Senate margin they needed to pass Obamacare.  Elias had already made his mark on history, having been credited with playing a key role in fashioning the false Russiagate narrative used against President Trump: 

Elias, who worked for the 2016 Hillary Clinton presidential campaign and Democratic National Committee, is perhaps best known for commissioning opposition research firm Fusion GPS to produce the fraudulent Steele dossier.

Described as the “Democratic general directing an army of left-wing lawyers in their bid to win back the Senate and take down President Donald Trump,” Elias is “known for his hyper-aggressive legal battles to overturn state election laws … including voter ID and absentee ballot witness requirements, and bans on ballot harvesting,” all to aid Democrats.  The Democratic National Committee alone paid Perkins Coie, Elias’ firm at the time, more than $11 million to attack state election integrity laws in 2020.

As former federal prosecutor Sol Wisenberg notes, sometimes the Democrats were pushing against an open door:

There was lawfare practiced openly.  It was done … by the Democrats …. [T]hey entered into consent decrees with friendly state attorney generals that ended up changing state election safeguards.  It allowed for earlier voting.  It allowed for absentee and mail-in balloting.  There is nothing wrong with that if people of a state, a legislature of a state votes for it.  But when it’s done through a consent decree or … a judge that has … an illegitimate interpretation of state statutory law that’s a problem.

Republican Party of Pennsylvania v. Boockvar

Before the 2020 election, Democrat lawyers sought an election rule change from the Democrat-controlled Pennsylvania Supreme Court.  The state court overrode a Pennsylvania state law which required mail-in ballots be received by 8:00 p.m. on election night in order to be counted.  The court created a three-day late-arrival “grace period” out of whole cloth.  Citing to possible “mail delays caused by the COVID pandemic,” the state court usurped the authority of the state legislature, overriding state law.  Pennsylvania Democratic Party v. Bookvar (Sept. 17, 2020).

On September 20, 2020, the Pennsylvania Republican Party sought an emergency stay of the state court decision from the U.S. Supreme Court.  Justices Thomas, Alito, Gorsuch and Kavanaugh would have granted the request, but it failed on a split vote of 4-4, as Chief Justice Roberts voted against consideration.  (Justice Ginsburg died two days before, on September 18.)  The Republican Party again came to the Supreme Court to seek relief before the election, but on October 28, 2020, the U.S. Supreme Court refused to expedite the case, citing the proximity to the election.  Justices Thomas, Alito, and Gorsuch blamed the Court itself for not hearing the case when there was time to decide it.  Justice Amy Coney Barrett had been sworn in on October 26, 2020, but declined to participate in that decision, perhaps to avoid looking as if she was there to serve the interests of President Trump.

After the election, on February 22, 2021, the Supreme Court declined to review the case over the dissents of Justices Thomas, Alito, and Gorsuch, and the Pennsylvania court’s illegitimate ruling was allowed to stand.

Texas v. Pennsylvania, et al.

At least one state took the initiative to ask the Supreme Court, in an original action filed directly in the High Court, to stop the abuses at the state level.  The State of Texas brought an original action in the U.S. Supreme Court challenging the Pennsylvania Supreme Court’s actions, as well as similar actions in Georgia, Michigan, and Wisconsin since it affected voting in a race for President.  Current Speaker of the House Mike Johnson led a group of 126 Congressmen to file an amicus brief in support of Texas’ suit.

The Supreme Court refused to hear the case, contending that Texas would have no standing to challenge what happened in Pennsylvania and the other states as it did not affect Texas in a Presidential election.  Texas v. Pennsylvania, 2020 U.S. LEXIS 5994 (2020).  Curiously, in Trump v. Anderson, discussed below, in order to keep Trump on the Colorado ballot, the Supreme Court relied on the simple truth that how one state conducts a presidential election does affect all the other states.

Moore v. Harper

Sadly, last year, in a case involving apportionment of legislative seats, the U.S. Supreme Court has thrown open the door to even more Democrat state courts to change election laws to make election fraud easier.  By judicial fiat, the Supreme Court negated the terms of the Elections Clause which gives authority over elections to state legislatures.

The North Carolina Supreme Court concluded that “[p]artisan gerrymandering violates the declaration of rights in the North Carolina Constitution” and threw out the plan, despite the U.S. Constitution’s clear placement of the conduct of elections in the state legislatures.  Harper v. Hall, 380 N.C. 317, 366 (N.C. 2022).  America’s Future filed an amicus brief in support of this clear reading of the U.S. Constitution.  The U.S. Supreme Court upheld the North Carolina court, reasoning that even though “partisan gerrymandering” is a “nonjusticiable” issue in federal court, state courts could still intervene — despite the complete lack of mention of state courts in the U.S. Constitution, and its express textual commitment of the issue to the people’s elected legislatures.  Moore v. Harper, 143 S. Ct. 2065 (2023).

Keeping Political Opponents off the Ballot

An even more aggressive strategy to affect the 2024 election was designed by two law professors, often described in the mainstream media as being “conservatives” and “originalists,” who devised a brand-new legal theory that Section 3 of the Fourteenth Amendment could be used to keep former President Trump off the ballot for having participated in an insurrection against the United States.  Initially, it is clear that President Trump was never even charged, to say nothing of not being convicted of, the federal crime of insurrection.  But additionally, the text of Section 3:  (i) does not apply to persons who have served as President; (ii) it does not apply to the President who takes a unique oath specified in the Constitution; and (iii) does not apply to serving as President.  The text of the Amendment in no way deterred these two law professors from advancing this lawfare theory, because they personally did not agree with what Section 3 actually states:

We do not buy it.  [It causes] a facially implausible consequence: an insurrectionist President is not covered … though nearly every other federal or state office holder is…. This makes little sense….  [T]he argument rather implausibly splits linguistic hairs….  [T]he argument must rely … on fine parsing of prepositional phrases.  [W. Baude & M. Paulsen, “The Sweep and Force of Section Three,” 172 U. PENN. L. REV. forthcoming at 108-09 (emphasis added).]

The arguments against this lawfare theory invented by lawfare lawyers were spelled out by America’s Future in an amicus brief filed in the U.S. Supreme Court in January 2024.  Trump asked the Supreme Court to resolve the issue.  In one of the few decisions that helps restore the confidence of the American people in the Supreme Court, it ruled unanimously that this lawfare theory, coauthored by a former clerk to Chief Justice Roberts, was bogus, ordering states not to use it to keep Trump off the ballot.  Trump v. Anderson, 601 U.S. 100 (March 4, 2024).

Prosecuting Political Opponents

One of the characteristics of a “banana republic” is the prosecution and jailing of leading political opponents.  America could be on the verge of becoming a “banana republic.”  In every country, it is difficult to serve as President while incarcerated.  When debating Hillary Clinton, President Trump famously said, “lock her up,” but never took any such action.  Those who criticized Trump for making that statement are trying to do what they criticized.

Donald Trump is the first former President of the United States to be indicted after leaving office for an alleged crime committed while President.  Trump has been indicted in four separate jurisdictions since leaving office in January 2021: two federal (District of Columbia and Florida) and two state (Georgia and New York).  These indictments include 91 separate federal and state charges, causing Trump to be facing felony charges that, combined, carry maximum prison sentences of 717.5 years.

Partisan politics infects every aspect of these prosecutions.  The two state prosecutors obtaining these indictments were both Democrats who opposed Trump’s election in 2020 and now oppose him in 2024.  The federal charges were brought by Special Counsel Jack Smith, who was appointed by Attorney General Merrick Garland, who, in turn, was appointed by Democrat President Biden.  Democrat Biden and Republican Trump are long-standing political rivals.  As Vice President, Biden supported Democrat Hillary Clinton against Trump in the 2016 Presidential race and ran against Trump in the 2020 presidential election.  In 2022, Fani Willis, the prosecutor in Georgia, appointed Nathan Wade as special prosecutor.  Before Trump was indicted, Wade attended two meetings in 2022 with White House personnelfor which he billed Fulton County.

These and other facts were brought to the attention of the U.S. Supreme Court by America’s Future in an amicus brieffiled on March 19, 2024.  The Supreme Court is expected to rule on this case in June 2024.

Editor’s Note: To read the articles in this series, please click here.

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