Read Sue Halpern in the New Yorker on Marc Elias’s Controversial Litigation Strategies

Here‘s a snippet:

Elias’s blitzkrieg litigation strategy has proved divisive among Democrats and others concerned with protecting the right to vote. Bringing so many voting-rights and redistricting cases to court, especially at a time when the judiciary is becoming increasingly conservative, his critics point out, runs the risk of creating bad precedent that actually undermines democracy. “I think Marc thinks of himself as a civil-rights lawyer, in that the right to vote is foundational, it’s fundamental, and I agree with that, certainly,” a lawyer affiliated with the Democratic Party told me. “But, if you look at the way civil-rights litigation has been brought in this country, the most important choices were not just the cases to bring but the cases not to bring. Every loss makes the next one harder.”

This is not a theoretical concern. In 2016, Elias sued the state of Arizona, in an effort to strike down two laws that, Elias argued, made it harder for Native Americans and Black and Hispanic people to vote. One of the laws prohibited ballot “harvesting”—the practice of collecting ballots and bringing them to a polling place or a drop box. The other invalidated ballots cast at the wrong precinct. Both laws, according to the plaintiffs, violated Section 2 of the Voting Rights Act, which prohibits states from passing voting laws that discriminate on the basis of race. In an amicus brief explaining the harm that would be caused by outlawing ballot collecting, the Navajo Nation argued that it “criminalizes ways in which Navajos historically participated in early voting by mail. Due to the remoteness of the Nation and lack of transportation, it is not uncommon for Navajos to ask their neighbors or clan members to deliver their mail.” In his brief, Elias argued that outlawing out-of-precinct voting disproportionately harmed people of color, because they tended to move frequently and were twice as likely to vote in the wrong precinct as white voters.

After being denied an injunction by both a lower court in Arizona and a panel of judges on the U.S. Court of Appeals for the Ninth Circuit, Elias resubmitted his petition to the full Ninth Circuit, which reversed itself and ultimately ruled that the two laws did, in fact, violate the Voting Rights Act. It turned out to be a Pyrrhic victory. Arizona’s attorney general, Mark Brnovich, appealed the decision, and the Supreme Court, in a 6–3 ruling issued last July, sided with Arizona. It was not only a defeat for Elias and the Democrats; it also potentially weakened Section 2 of the Voting Rights Act in ways that could make future claims of discrimination difficult to prove. The Times called the decision “among the most consequential in decades on voting rights.” In her dissent, Justice Elena Kagan called it “tragic.”

The Brnovich decision was an opportunity for Elias’s critics to say “I told you so.” With Section 2 on the line, many could not understand why, after losing in the lower courts, Elias charged ahead with his appeals, each one bringing the case closer to the possibility of a precedent-setting bad outcome. In Hasen’s estimation, it was a weak case from the start; Elias was suing to get laws tossed out in Arizona that were already on the books in a number of other states. “This was just not the kind of case that you’d want to bring,” he told me, “especially knowing it would go to the Ninth Circuit, and that it would present a huge target for someone like Justice [Samuel] Alito to smack down Section 2. And that’s what he did, in a horrible opinion.”

Elias, not surprisingly, is unmoved by this line of attack. It doesn’t matter that some states already have laws on the books that mirrored the ones he was attempting to overturn in Arizona, he told me. Those laws, in those jurisdictions, did not have the same discriminatory intent as they did in Arizona. “I know that there are people who think that my litigation strategy is too broad,” Elias said. “I understand that if you are sitting in your comfy office thinking big, jurisprudential thoughts, you don’t like the Brnovich decision, but you know who really didn’t like it? The voters. Those laws disenfranchised thousands of people of color.” He went on, “We are not about saving laws on bookshelves, so that thirty years from now we can take them off when the Supreme Court flips in a different direction. The crisis is now, and we’ve got to do everything we can to remedy the problems.”

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