April 2, 2023

Now that the Republicans have eked out a majority in the House of Representatives, one midterm mystery remains: Who will Georgia send to the U.S. Senate? Because incumbent Sen. Raphael Warnock couldn’t convince a majority of Georgia voters to reelect him on Nov. 8, he must face GOP challenger Herschel Walker in a Dec. 6 runoff. Democratic angst over the rematch was such that they sent controversial Clinton attorney Marc Elias to drag Warnock over the finish line.

In Georgia, candidates for statewide office must win 50 percent of the vote — plus one — to be declared the winner. Warnock spent a record-breaking $75.9 million yet garnered only 49.4 percent. Walker received 48.5 percent, and 2.1 percent went to Libertarian spoiler Chase Oliver. The latter won’t be on the Dec. 6 ballot, and this worried the Democrats enough to call in Elias, who filed a lawsuit alleging that the state illegally prohibited early voting on the Saturday after Thanksgiving. Secretary of State Brad Raffensperger responded as follows:

If recent elections prove one thing, it’s that voters expect candidates to focus on winning at the ballot box- not at the courthouse. Senator Warnock and his Democratic Party allies are seeking to change Georgia law right before an election based on their political preferences. Instead of muddying the water and pressuring counties to ignore Georgia law, Senator Warnock should be allowing county election officials to continue preparations for the upcoming runoff.

At issue was a 2016 statute that prohibits early voting on the second Saturday before a runoff if it follows a “legal holiday occurring on the Thursday or Friday immediately preceding such second Saturday.” The Elias lawsuit argued that the law applies only to primary and general elections, despite six references to runoffs in its text. Last Friday, Fulton County Superior Court Judge Thomas Cox ruled in favor of Warnock, finding that the law “does not explicitly prohibit counties from conducting advance voting on Saturday, November 26, 2022.”

Warnock was predictably elated by the ruling. Friday evening, he took to Twitter and celebrated the decision: “This is a big WIN for democracy. Saturday voting is critical for Georgia voters, especially students and workers. I’m glad the courts have spoken in favor of making it easier for Georgia voters to have a say in their own democracy.” Not everyone saw it as a victory for the voters, however. Jason Snead, executive director of Honest Elections Project, issued a statement denouncing the judge’s misreading of the statute:

Tonight’s court ruling in Georgia is a case study in judicial activism. Left-wing lawyer Marc Elias and Georgia Democrats invited the court to twist state law for political gain. Georgia law is crystal clear: voting cannot take place on the Saturday after Thanksgiving.… Rewriting the law in Georgia at the last minute creates a slew of complications that further distorts elections, confuses voters, and creates unequal voting opportunities across Georgia.

According to Mark Neisse of the Atlanta Journal-Constitution, the secretary of state’s office responded to the ruling with this terse statement: “We disagree with the Court’s order and look forward to a prompt appeal.” If the state fights the ruling, an appeals court would have to stay Cox’s ruling this week. Heavily Democratic Fulton County has already announced that early voting for the runoff will begin on Saturday, Nov. 26, and continue every day through Dec. 2. A court order forbidding Saturday voting would create chaos.

This mess provides a good argument in favor of the independent state legislature (ISL) theory at issue in a case upon which the U.S. Supreme Court will rule this term. Moore v. Harper is about a dispute between North Carolina’s legislature and the state’s Supreme Court. The former has petitioned SCOTUS to rule that the Constitution forbids state courts from reviewing laws passed by state legislatures to redistrict congressional seats or to establish voting rules. Predictably, Elias is worried about this case. He describes the ISL theory thus:

The [independent state legislature] theory interprets the word “legislature” in the U.S. Constitution to mean that state legislatures — and only state legislatures — can make laws regulating federal elections. This differs from the standard interpretation, in which “legislature” means the state’s general lawmaking process, which includes the governor’s veto, citizen-led ballot measures and rulings of state courts.

The last four words of this description explain why Elias is concerned that SCOTUS will adopt the ISL theory in Moore v. Harper. If that happens, he will no longer be able to descend on a state like Georgia just before an election or a runoff and meddle with laws that Democratic politicians find inconvenient. If the ISL doctrine had been in place when he filed his lawsuit last week, the matter would have been outside of Cox’s jurisdiction. There would have been no ruling from the court reversing the state’s guidance on Saturday voting.

As it is, there’s still no guarantee that changing the rules for early voting will be enough to get Warnock over the 50 percent threshold. That he failed to do so on Nov. 8 as an incumbent with an enormous war chest — against an opponent with no political experience — suggests that the senator is not exactly beloved by Georgia voters. Moreover, bringing in characters like Marc Elias to meddle in the election is unlikely to have endeared him to voters who already rejected him once. A lot of people have tried to outrun Herschel Walker and failed.