Ghosts of Elections Past, Present, and Future

We talked to Rick Pildes (NYU Law) a few days after the Moore v. Harper oral argument, the “independent state legislature” case that instilled many worries about the Court opening a door to state legislatures overriding the popular vote. While those fears were unfounded (so to speak), this case raises other concerns that federal courts will get more intwined with elections and will block state courts from enforcing their constitutions, overturning impermissible gerrymanders, and providing remedies.

In “Ghosts of Elections Past, Present, and Future,” we talk about how this case is haunted not only by the 2020 election, a fake electors scheme based on the Electors Claus(e), and an insurrection; it is also haunted by ghost-of-election-past Bush v. Gore and the ghosts-of-election-future. We also ask, “Do You Hear What I Hear?” The left embracing Rehnquist’s Bush v. Gore concurrence? Jed also observes a Festivus Airing of Grievances about conservatives’ originalism errors and the Democrats’ litigation strategy.  There was barely enough historical evidence to sustain one hour of oral argument, but the Court made it last for what felt like eight. We also talk to Rick about election law in an era of fragmentation(North Pole-arization?)

Rick is the Sudler Family Professor at NYU Law School anda co-creator of the major casebook in this field, The Law of Democracy. He has served on President Biden appointed him to the President’s Commission on the Supreme Court of the United States. As a lawyer, Pildes has successfully argued voting-rights and election-law cases before the United States Supreme Court, and was part of the Emmy-nominated NBC breaking-news team for coverage of the 2000 Bush v. Gore contest.

We discuss his recent articles and posts here:

“The Age of Political Fragmentation,” Journal of Democracy (2021).

“Election Law in an Age of Distrust,” Stanford Law Review Online (2022).

Election Law Blog on Moore v. Harper here and here.

We also discuss:

Kate Shaw, Oral Argument in Moore v. Harper and the Perils of Finding “Compromise” on the Independent State Legislature Theory (Just Security)

Jed’s twitter thread on Moore v. Harper and Democratic lawyers making problematic concessions here, relating to a proposed solution against remedies from Will Baude and former judge Michael McConnell here (the Atlantic).