Amicus Curiae Brief — Timothy K. Moore, in His Official Capacity as Speaker of the North Carolina House of Representatives, et al., Petitioners v. Rebecca Harper, et al.
Supreme Court briefSep 6, 2022
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No. 21-1271
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IN THE
Supreme Court of the United States
____________________
TIMOTHY K. MOORE, IN HIS OFFICIAL CAPACITY AS
SPEAKER OF THE NORTH CAROLINA HOUSE OF
REPRESENTATIVES, ET AL., Petitioners,
v.
REBECCA HARPER, ET AL., Respondents.
____________________
On Writ of Certiorari
to the Supreme Court of North Carolina
____________________
Brief Amicus Curiae of
America’s Future, Inc.
in Support of Petitioners
____________________
RICK BOYER
INTEGRITY LAW FIRM
P.O. BOX 10953
Lynchburg, VA 24506
WILLIAM J. OLSON*
JEREMIAH L. MORGAN
ROBERT J. OLSON
WILLIAM J. OLSON, P.C.
370 Maple Ave. W., Ste. 4
Vienna, VA 22180
PATRICK MCSWEENEY
(703) 356-5070
MCSWEENEY, CYNKAR &
wjo@mindspring.com
KACHOUROFF, PLLC
3358 John Tree Hill Road *Counsel of Record
Powhatan, VA 23139
Attorneys for Amicus Curiae
September 6, 2022
444444444444444444444444444444444444444444
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . iii
INTEREST OF THE AMICUS CURIAE . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT
I.
NORTH CAROLINA STATE COURTS LACKED
JURISDICTION TO ENTERTAIN STATE
CONSTITUTIONAL CHALLENGES . . . . . . . . . . . . . 5
A. The North Carolina Courts Usurped the
Role of the North Carolina Legislature . . . 5
B. In Prescribing Election Regulations,
State Legislatures are Not Exercising a
Legislative Function . . . . . . . . . . . . . . . . . . 8
II. LIKE THE ELECTORS CLAUSE, THE ELECTIONS
CLAUSE ENTRUSTS POWER TO STATE
LEGISLATURES TO MINIMIZE THE RISK OF
CORRUPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
III. CHAOTIC RULE CHANGES IN RECENT
ELECTIONS DEMONSTRATE THE WISDOM OF
THE ELECTIONS CLAUSE VESTING
RULEMAKING ONLY TO LEGISLATURES . . . . . . . 17
ii
A. The 2020 Federal Election Devolved into
a Battle for Court Decisions to Overrule
Legislatively Prescribed Regulations . . . . 18
B. Election Lawfare Does Not Seek
Principled, Consistent Outcomes,
Damaging Confidence in Elections. . . . . . 23
C. Upholding the Elections Clause Is
Inherently Democratic, Not
“Un-democratic” . . . . . . . . . . . . . . . . . . . . 26
D. Allowing State Courts to Usurp the Duty
of State Legislatures Establishes an
Oligarchy, Not a Democracy . . . . . . . . . . . 29
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
iii
TABLE OF AUTHORITIES
Page
CONSTITUTIONS
Article I, Sec. 4, cl. 1. . . . . . . . . . . . . . . . . . . 3, passim
Article II, Sec. 1, cl. 2 . . . . . . . . . . . . . . . . 4, 6, 12, 13
N.C. Const. Art. II, Sec. 22(1) . . . . . . . . . . . . . . . . . 9
N.C. Const. Art. II, Sec. 22(5)(d) . . . . . . . . . . . . . . . 9
CASES
Andino v. Middleton, 141 S. Ct. 9 (2020) . . . . . . . 21
Arizona State Legislature. v. Arizona Indep.
Redistricting Comm'n, 576 U.S. 787
(2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10, 11
Bush v. Gore, 531 U.S. 98 (2000) . . . . . . . . . . 6, 7, 12
Carson v. Simon, 494 F. Supp. 3d 589
(D. Minn. 2020) . . . . . . . . . . . . . . . . . . . . . . . . 22
Carson v. Simon, 978 F.3d 1051 (8th Cir.
2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Coyle v. Smith, 221 U.S. 559 (1911) . . . . . . . . . . . 16
DCCC v. Ziriax, 487 F. Supp. 3d 1207
(N.D. Okla. 2020) . . . . . . . . . . . . . . . . . . . . . . . 21
Democratic National Comm. v. Bostelmann,
977 F.3d 639 (7th Cir. 2020) . . . . . . . . . . . . . . 22
Democratic National Comm. v. Wisconsin
State Legis., 141 S. Ct. 28 (2020) . . . . . . . 29, 30
Gilby v. Hughs, 2020 U.S. Dist. LEXIS 178465
(W.D. Tex. 2020) . . . . . . . . . . . . . . . . . . . . . . . 23
Greater Birmingham Ministries v. Sec’y of Ala.,
992 F.3d 1299 (11th Cir. 2021) . . . . . . . . . . . . 20
Leser v. Garnett, 258 U.S. 130 (1922) . . . . . . . . . . 14
Luther v. Borden, 48 U.S. 1 (1849) . . . . . . . . . . . . 31
McPherson v. Blacker, 146 U.S. 1 (1892) . . . . . . . . 6
Mecinas v. Hobbs, 2022 U.S. Dist. LEXIS 98610
(D. Ariz. 2022) . . . . . . . . . . . . . . . . . . . . . . . . . 25
iv
Middleton v. Andino, 488 F. Supp. 3d 261
(D. S.C. 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Middleton v. Andino, 990 F.3d 768
(4th Cir. 2020) . . . . . . . . . . . . . . . . . . . . . . . . . 21
Miller v. Hughs, 471 F. Supp. 3d 768
(W.D. Tex. 2020) . . . . . . . . . . . . . . . . . . . . 23, 24
New Ga. Project v. Raffensperger, 976 F.3d 1278
(11th Cir. 2020) . . . . . . . . . . . . . . . . . . . . . . . . 22
Pavek v. Simon, 967 F.3d 905 (8th Cir. 2020). . . . 24
Priorities USA v. Nessel, 487 F. Supp. 3d 599
(E.D. Mich. 2020) . . . . . . . . . . . . . . . . . . . . . . . 20
Richardson v. Flores, 28 F.4th 649 (5th Cir.
2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Texas Democratic Party v. Abbott, 461 F. Supp.
3d 406 (W.D. Tex. 2020) . . . . . . . . . . . . . . . . . 23
Texas Democratic Party v. Abbott, 978 F.3d 168
(5th Cir. 2020) . . . . . . . . . . . . . . . . . . . . . . . . . 23
Texas Democratic Party v. Hughs, 997 F.3d 288
(5th Cir. 2021) . . . . . . . . . . . . . . . . . . . . . . . . . 23
Voto Latino Foundation v. Hobbs, 2020 U.S. Dist.
LEXIS 108435 (D. Ariz. 2020) . . . . . . . . . . . . . 21
MISCELLANEOUS
V. Amar & A. Amar, “Eradicating Bush-League
Arguments Root and Branch: The Article II
Independent State Legislature Notion and
Related Rubbish,” 2021 SUP. CT. REV. 1
(2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
R. Blaustein, “Fringe No More? Independent State
Legislature Theory,” Washington Lawyer
(Sept./Oct. 2022). . . . . . . . . . . . . . . . . . . . . . 7, 27
Building Confidence in U.S. Elections: Report
of the Commission on Federal Election
Reform (Sept. 2005) . . . . . . . . . . . . . . . . . . . . . 17
v
G. Carey & J. McClellan, The Federalist No. 68
(Liberty Fund: 2001) . . . . . . . . . . . . . . . 4, 13, 14
T. Cowen, “Stop calling everything you disagree
with ‘anti-democratic,” Bloomberg News
(Aug. 29, 2022) . . . . . . . . . . . . . . . . . . . . . . 27, 28
Hillary Clinton, Tweet (July 1, 2022) . . . . . . . 26, 27
Max Farrand, ed., I The Records of the Federal
Convention of 1787 (Yale Univ. Press: 1911) . 26
E. Felten, “The Left’s legal top gun Marc Elias
isn’t finished with democracy yet,” RealClear
Investigations (Mar. 24, 2021). . . . . . . . . . 19, 27
D. Jackson & D. Roe, “Big Firms Bring in Millions
as Hundreds of Election Lawsuits Rage Across
the Country,” The American Lawyer
(Oct. 15, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . 18
R. Mills & T. Hoonhout, “Democratic Legal
Activist Marc Elias Has Spent a Career
Preparing for the 2020 Election Fight,”
National Review (Nov. 3, 2020) . . . . . . . . . . . . 18
J. Pollak, “Democrat Lawyer Marc Elias Claims
Faulty Voting Machines in New York Race,”
Breitbart (Feb. 3, 2021) . . . . . . . . . . . . . . . 25, 26
D. Rivkin & J. Snead, “Moore v. Harper and Marc
Elias’s Curious Idea of ‘Democracy’,” Wall
Street Journal (Aug. 1, 2022) . . . . . . . . . . . . . 20
A. Scalia & B. Garner, Reading Law
(Thomas/West: 2012) . . . . . . . . . . . . . . . . . 3, 6, 7
C. Spiezio, “Tight election keeps spotlight
on Perkins Coie’s political law team,” Reuters
(Nov. 4, 2020) . . . . . . . . . . . . . . . . . . . . . . . 18, 19
INTEREST OF THE AMICUS CURIAE1
America’s Future, Inc. is a nonprofit educational
and legal organization, exempt from federal income tax
under Internal Revenue Code section 501(c)(3),
established in 1946, inter alia, for the purpose of
participating in the public policy process, including
conducting research, and informing and educating the
public on the proper construction of state and federal
constitutions, as well as statutes related to the rights
of citizens, and questions related to human and civil
rights secured by law.
STATEMENT OF THE CASE
Following the 2020 decennial census, the North
Carolina General Assembly redrew that state’s
congressional districts. That redistricting plan was
challenged in state court, which culminated with a
decision of the North Carolina Supreme Court
discarding the state legislature’s map and substituting
a map which had been drawn by three Special Masters
appointed by the trial court based on a purported
violation of the North Carolina Constitution. Harper
v. Hall, 868 S.E.2d 499 (N.C. 2022) and Order on
Remedial Plans, Harper v. Hall, Nos. 21 CVS 015426,
21 CVS 500085 (N.C. Super. Ct. Feb. 23, 2022)
Pet.App.269a.
1
It is hereby certified that counsel for Petitioners and for
Respondents have consented to the filing of this brief; that no
counsel for a party authored this brief in whole or in part; and
that no person other than this amicus curiae, its members, or its
counsel made a monetary contribution to its preparation or
submission.
2
Petitioners, who are leaders and members of the
North Carolina General Assembly, sought a stay from
this Court, which was denied, with Justice Alito,
joined by Justices Thomas and Gorsuch, dissenting
from the denial of the stay, noting that “This case
presents an exceptionally important and recurring
question of constitutional law.... There can be no
doubt that this question is of great national
importance.” Moore v. Harper, 142 S. Ct. 1089 (2022)
(Alito, J., dissenting from denial of application for
stay). Justice Kavanaugh concurred with the denial of
the stay but “agree[d] with Justice Alito that the
underlying Elections Clause question raised in the
emergency application is important, and that both
sides have advanced serious arguments on the merits.”
Id. at 1089 (Kavanaugh, J., concurring in denial of
application for stay).
Petitioners then filed a petition for writ of
certiorari, which was granted on June 30, 2022, to
address the question:
Whether a State’s judicial branch may nullify
the regulations governing the “Manner of
holding Elections for Senators and
Representatives ... prescribed ... by the
Legislature thereof,” U.S. Const. art. I, § 4, cl.
1, and replace them with regulations of the
state courts’ own devising, based on vague
state constitutional provisions purportedly
vesting the state judiciary with power to
prescribe whatever rules it deems appropriate
to ensure a “fair” or “free” election.
3
SUMMARY OF ARGUMENT
The first principle of interpretation set out in
Justice Scalia’s Treatise Reading Law is: “Every
application of a text to particular circumstances
entails interpretation.” Rarely does a case come to this
Court that requires less interpretation than the issue
presented here. Petitioners ask this Court to apply the
text of Article I, Sec. 4, cl. 1 in a straightforward
manner — that when the Framers vested the power to
prescribe the regulations governing Congressional
elections in the Legislature of a state, they actually
meant the Legislature. Respondents take the position
that this specific governing language should be
interpreted in light of general principles of
constitutional law, to the end that state courts become
empowered to overturn the regulations prescribed by
the Legislature. That leads to the question: “if the
Framers had actually intended to vest this power
exclusively in state Legislatures, what words should
they have used?”
This amicus supports Petitioners’ effort to reaffirm
the primacy of state Legislatures, but urges this Court
to take a somewhat different path to that end. This
amicus believes that viewing the act of a state
Legislature prescribing regulations pursuant to the
Elections Clause
as a legislative act creates
unnecessary confusion. The better view is that in
prescribing regulations, a state Legislature is not
exercising legislative power — but exercising a power
directly vested in it by the federal Constitution. Here,
the text is significant, as the Constitution describes
the act of the Legislature to be “prescribing” not
4
“legislating,” to create “regulations,” not “laws.” While
this Court may believe it unnecessary to overrule this
Court’s 2015 decision in Arizona State Legislature v.
Arizona Indep. Redistricting Comm’n, this amicus
believes it should be overruled for all the reasons set
in Chief Justice Roberts’ dissent in that case.
The similarity between the Elections Clause in
(Article I, Sec. 4, cl. 1) and the Electors Clause (Article
II, Sec. 1, cl. 2) cannot be missed. In both cases, the
Framers invested exclusive authority in state
Legislatures. The reasons that the President was to be
chosen by a body of electors, and that the manner by
which those electors would be “appointed” was vested
exclusively in the state Legislatures, was described in
Federalist No. 68. Those reasons include “to avoid
cabal, intrigue, and corruption” and prevent “foreign
powers” from gaining influence.
Those reasons
undergirding the drafting of the Electors Clause are
informative with respect to understanding the
Elections Clause.
When redistricting choices of state Legislatures
are allowed to be overridden after prolonged litigation
by state courts, elections are held before this Court has
the opportunity to issue a definitive ruling. The 2020
election illustrates what can happen when the
regulations prescribed by state Legislatures are
overturned by state courts, by settlement agreements
between plaintiff lawyers and state officials of the
same party, and in many other ways. The rules
governing voter registration, absentee ballots, when
ballots must be returned, signature requirements, are
all thrown into a state of flux. By just one measure of
5
validity, this usurpation of state Legislative power led
to millions more Americans who voted via a process —
absentee ballots, including mail-in ballots — that the
bipartisan Jimmy Carter-James Baker commission
identified as “the largest source of potential voter
fraud” in the wake of the contested 2000 election. If
such chaos is allowed to continue, it will effectively
transfer electoral power from the People’s elected
representatives to political lawyers and state judges,
undermining public confidence in elections.
ARGUMENT
I.
NORTH CAROLINA STATE COURTS
LACKED JURISDICTION TO ENTERTAIN
STATE CONSTITUTIONAL CHALLENGES.
A. The North Carolina Courts Usurped the
Role of the North Carolina Legislature.
The U.S. Constitution places the authority for
prescribing regulations for the conduct of
congressional elections in each state’s Legislature,
subject to override by Congress in certain matters:
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, except as to the Places of chusing
Senators. [Art. I, § 4, cl. 1 (emphasis added).]
6
Respondents take the position that this vesting of
power in state legislatures should not be understood as
written, because to do so would violate general
principles that they draw from other federal or state
constitutions. Respondents elevate those perceived
general principles over the specific governing
constitutional text, using a method of textual
interpretation that is not just wrong as applied here,
but also fraught with danger whenever used.
“The framers of the Constitution employed words
in their natural sense; and where they are plain and
clear, resort to collateral aids to interpretation is
unnecessary and cannot be indulged in to narrow or
enlarge the text.” McPherson v. Blacker, 146 U.S. 1,
27 (1892). “The prescription of the written law cannot
be overthrown because the States have latterly
exercised in a particular way a power which they
might have exercised in some other way.” Id. at 36.
Respondents read the Elections Clause as if it
specified that regulations for federal elections “shall be
prescribed by each State”2 — rather than “in each
State by the Legislature thereof....” Such a reading
would violate the Surplusage Canon, which requires,
“[i]f possible,” that “every word and every provision is
2
The opening sentence of the dissent in a decision of this Court
involving a similar constitutional provision (Article II, Sec. 1, cl.
2) made just this misreading of the text. See Bush v. Gore, 531
U.S. 98, 123 (2000) (Stevens, J., dissenting) (“The Constitution
assigns to the States the primary responsibility for determining
the manner of selecting the Presidential electors.” (Emphasis
added).)
7
to be given effect.” A. Scalia & B. Garner, Reading
Law at 174 (Thomas/West: 2012). The words “by the
Legislature” must be given effect — as they specify
which component of state government has
responsibility to prescribe those regulations. Or, one
could say Respondents read the Elections Clause as if
it specified “by the Legislature subject to review by
such State’s courts for compliance with state
constitutional and statutory provisions.” Since those
words are nowhere to be found in the text,
Respondents, in effect, ask this Court to read them
into the Constitution.
Enforcing the Constitution’s allocation of power
“does not imply a disrespect for state courts but rather
a respect for the constitutionally prescribed role of
state legislatures.” Bush v. Gore at 115 (Rehnquist,
C.J., concurring).
Critics of Petitioners’ view claim that the
“legislature [referred to in Article I, Section 4 of the
U.S. Constitution] is an entity that itself is created and
confined by the state constitution.” See R. Blaustein,
“Fringe No More? Independent-State-Legislature
Theory,” Washington Lawyer (Sept./Oct. 2022) (quoting
R. Zagarri, The Politics of Size: Representation in the
United States, 1776-1850) (Cornell Univ. Press: 2010).
A caustic take on this Court’s Bush v. Gore decision
argues that “a state legislature is properly defined and
bounded by the state constitution that gives the
legislature life. When state jurists attend to the state
constitution in interpreting state election statutes,
these judges are enforcing Article II, not undermining
it.” V. Amar & A. Amar, “Eradicating Bush-League
8
Arguments Root and Branch: The Article II
Independent-State-Legislature Notion and Related
Rubbish,” 2021 SUP. CT. REV. 1, 8 (2021). These
authors react to the constitutional text as Dracula to
the Cross. The authors of this article view the simple,
textual argument that when the Framers used the
phrase “by the Legislature thereof,” they meant
exactly that, as “self-refuting,” “rubbish,” an argument
that “not only fails, it implodes. It self-contradicts.”
Id. at 8-9. Searching for the logic behind this
rhetorical excess, these authors must conclude that it
would be unconstitutional under state law for the
federal constitution to vest any power exclusively in a
state legislature. How these authors would view the
application of the Supremacy Clause to their own
argument is unknown.
The fact that a state legislature exists under the
authority of a state constitution, and that state
constitution constrains a state legislature under
normal circumstances, is irrelevant here. Any such
constraints governing the enactment of legislation
cannot apply when the state legislature performs its
constitutional duty to “prescribe” “regulations” to
govern a federal election.
B. In Prescribing Election Regulations,
State Legislatures Are Not Exercising a
Legislative Function.
This amicus reaches the same conclusion as
Petitioners, in that it views the action of the state
legislature to be unreviewable by state courts for
violation of the state’s constitution. However, this
9
amicus reaches that result in a manner different from
Petitioners, who view the act redistricting by the
North Carolina General Assembly to be a state
legislative act. Petitioners describe redistricting as “a
quintessentially legislative one,” and an “inherently
legislative decision[],” and describe it as “this
legislative power.” Brief for Petitioners (“Pet. Br.”) at
4, 12. Petitioners argue that if a state governor is
involved in the making of state laws through the veto
power, that governor is performing a legislative
function. Pet. Br. at 39-40.
However, this amicus believes the better view is
that in setting rules for federal elections, a state
Legislature is not performing a legislative function at
all. Article I does not by its terms empower the
Legislature to “enact” a “law.” Rather, the state
Legislature is empowered by Article I to “prescribe”
the “Regulations” by which the Congressional
elections are to be administered (subject only to
Congressional override on the times and manner of
those elections).
The position of this amicus is fully consistent with
the North Carolina Constitution. That Constitution
requires that bills be presented to the Governor before
becoming a law (N.C. Const. Art. II, Sec. 22(1)), but
provides an exception from this presentment
requirement for bills “Revising the districts for the
election of members of the House of Representatives of
the Congress of the United States....” Id. at Sec.
22(5)(d). If the North Carolina Constitution viewed
redistricting as an exercise of the legislative power, it
is likely it would have required presentment to the
10
Governor.
By omitting the requirement of
presentment for redistricting, the Constitution
recognizes that redistricting is not a legislative act.
However, even if the state Constitution required
presentment of redistricting or any other federal
election requirement, it would not diminish the
authority of the state legislature to act alone.
No doubt one of the reasons Petitioners argue as
they do is this Court’s decision in Arizona State
Legislature v. Arizona Indep. Redistricting Comm’n,
576 U.S. 787 (2015), where it strayed from a textually
faithful application of the Elections Clause by
approving a state Proposition. “In 2000, Arizona
voters adopted an initiative, Proposition 106, aimed at
‘ending the practice of gerrymandering and improving
voter and candidate participation in elections.’
Proposition 106 amended Arizona’s Constitution to
remove redistricting authority from the Arizona
Legislature and vest that authority in an independent
commission....” Id. at 792. Chief Justice Roberts’
dissent exposed that decision’s weakness:
Just over a century ago, Arizona became the
second State in the Union to ratify the
Seventeenth Amendment. That Amendment
transferred power to choose United States
Senators from “the Legislature” of each State,
Art. I, §3, to “the people thereof....”
What chumps! Didn’t they realize that all
they had to do was interpret the constitutional
term “the Legislature” to mean “the people”?
The Court today performs just such a magic
trick with the Elections Clause. Art. I, §4....
11
The Court’s position has no basis in the
text, structure, or history of the Constitution,
and it contradicts precedents from both
Congress and this Court....
The majority largely ignores this evidence,
relying instead on disconnected
observations about direct democracy, a
contorted interpretation of an irrelevant
statute, and naked appeals to public
policy.
Nowhere does the majority
explain how a constitutional provision
that vests redistricting authority in “the
Legislature” permits a State to wholly
exclude “the Legislature” from
redistricting. Arizona’s Commission might
be a noble endeavor—although it does not
seem so “independent” in practice—but the
“fact that a given law or procedure is efficient,
convenient, and useful ... will not save it if it is
contrary to the Constitution.” INS v. Chadha,
462 U.S. 919, 944 (1983). No matter how
concerned we may be about partisanship
in redistricting, this Court has no power
to gerrymander the Constitution. [Arizona
State Legislature at 824-26 (Roberts, C.J.,
dissenting) (emphasis added).]
This amicus does not disagree that this Court
could rule for Petitioners without upending Arizona
State Legislature (Pet. Br. at 40), but it would be much
preferable if it took that further step to clean up its
redistricting jurisprudence. Chief Justice Roberts’
dissent was entirely correct and directly on point here.
12
II. LIKE THE ELECTORS CLAUSE, THE
ELECTIONS CLAUSE ENTRUSTS POWER
TO STATE LEGISLATURES TO MINIMIZE
THE RISK OF CORRUPTION.
As Chief Justice Rehnquist explained, Article I,
Sec. 4, cl. 1, is one of “a few exceptional cases in which
the Constitution imposes a duty or confers a power on
a particular branch of a State’s government....
Thus, the text of the election law itself, and not just
its interpretation by the courts of the States, takes on
independent significance.” Bush v. Gore at 112-13
(Rehnquist, C.J., concurring) (emphasis added).
Indeed, “the text” alone should be sufficient to resolve
this case.
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, except as to the Places of chusing
Senators. [Article I, Sec. 4, cl. 1 (emphasis
added).]
Another of these “exceptional cases” conferring a
power on a particular branch of state government is
the Electors Clause.
Each State shall appoint, in such Manner
as the Legislature thereof may direct, a
Number of Electors, equal to the whole
Number of Senators and Representatives to
which the State may be entitled in the
13
Congress: but no Senator or Representative, or
Person holding an Office of Trust or Profit
under the United States, shall be appointed an
Elector. [Article II, Sec. 1, cl. 2 (emphasis
added).]
The reasons that state Legislatures were entrusted
by the Framers with authority to select electors in the
Electors Clause is instructive as to why state
Legislatures were entrusted by the Framers with
authority to prescribe the regulations for elections in
the Elections Clause.
In short, the Framers of the Constitution believed
that the Legislature was the body that could best be
trusted to determine the manner of appointing
Electors. Federalist Paper No. 68 reveals the deep
concerns based on corruption and foreign intrigue that
were weighed by the Framers in fashioning the
Electors Clause.
Nothing was more to be desired than that
every practicable obstacle should be opposed to
cabal, intrigue, and corruption. These
most deadly adversaries of republican
government might naturally have been
expected to make their approaches from more
than one quarter, but chiefly from the desire in
foreign powers to gain an improper
ascendant in our councils. How could they
better gratify this, than by raising a creature
of their own to the chief magistracy of the
Union? But the convention have guarded
against all danger of this sort, with the most
14
provident and judicious attention. [G. Carey &
J. McClellan, The Federalist No. 68 (Liberty
Fund: 2001) (emphasis added).]
Thus, it was the conviction of the Framers that, to
guard against these threats to the Republic, the
authority to determine the Means of an Election must
be vested exclusively in state legislatures, subject to no
constraint other than the Constitution.3
The Framers had long experience with legislative
bodies during the colonial period. They knew the
strengths of such bodies and their weaknesses. They
knew that state legislatures can be frustrating in
causing delay and even gridlock, but they knew that
state legislatures conducted open debate with the
transparency that deliberation requires.
State
legislators would likely include persons from all walks
of life — farmers, merchants, persons with military
background, physicians, and even lawyers. They
would come from rural portions of each state and more
densely populated areas. They would be of different
ages and different temperaments. They would likely
be drawn from different religious backgrounds. And
they would regularly stand for election within a House
or Senate district sufficiently small that the person
would be reasonably well known and respected by the
electorate. When this mix of persons who exhibited
leadership skills would assemble, the result would
3
See Leser v. Garnett, 258 U.S. 130, 137 (1922) (function of state
legislature in carrying out a federal function derived from the U.S.
Constitution “transcends any limitations sought to be imposed by
the people of a State”).
15
likely reflect the will of the people. Such a deliberative
body could only rarely be captured by narrow factional
interests, and if it were to occur, likely would not last
long.
The Framers did not entrust the responsibility to
select electors to governors, secretaries of state, judges,
election officials, or anyone else. While the passions of
assisting one’s own political party could cloud the
judgment of a governor or other individual to skew the
system and invite fraud that helps his personal
ambitions and those of his friends, a deliberative body
is highly unlikely to be controlled by a majority of both
chambers who are dominated by the same impulses.
Although that certainly could happen, political power
must be vested somewhere, and the state legislatures
were deemed by the Framers to be the most reliable.
The duty of this Court to enforce the Framers’
entrustment of power to state Legislatures under the
Elections Clause (and also the Electors Clause) is of
the highest order, for in many cases the rules can
determine the outcome of elections. If this were not so,
political parties would not expend a lion’s share of
their campaign budget on litigation and other
approaches to change those rules after they are set by
the Legislature, but before elections are held. See
section III, infra.
Allowing just one large swing state to violate the
Elections Clause can result in a massive shift of
national political power affecting every state and every
American. If the state courts of just one state engage
in an unconstitutional rewriting of election regulations
16
on the eve of an election, causing the election of
candidates who otherwise would have lost, what
happens in that state can affect who controls the
House and who controls the Senate, and thereby
everyone who lives in America. (The same is true for
the violations of the Electors Clause, as casting a large
swing state’s electors to a candidate who should have
lost, can determine who is President and who is Vice
President, and that affects the lives of every
American.) Thus, each state had and still has a
reciprocal duty to follow this delegation of power so
that the Congress has legitimacy.
Each state4 depends on other states to adhere to
minimum constitutional standards in areas where it
ceded its sovereignty to the union — and now it is the
duty of this Court to reaffirm the role of state
Legislatures and ensure that their role not again be
usurped in the future.
4
These mutual responsibilities of the states to follow in their
state the rules specified in the Constitution for federal elections
were agreed to by each state when the Constitution was ratified
(including North Carolina). Thereafter, each state came into the
Union on an “equal footing” (such as Michigan and Wisconsin),
accepting the constitutional process by which federal elections
would be run. See Coyle v. Smith, 221 U.S. 559 (1911).
17
III. CHAOTIC RULE CHANGES IN RECENT
ELECTIONS DEMONSTRATE THE WISDOM
OF THE ELECTIONS CLAUSE VESTING
RULEMAKING ONLY TO LEGISLATURES.
In many states, the times, places, and manner by
which the November 2020 federal election took place
did not at all resemble the manner in which state
legislatures had determined it would. State courts,
secretaries of state, election officials, and even private
parties usurped the authority of state legislatures,
resulting in electoral chaos which, no doubt, affected
the results. Indeed, the chaotic, ever-changing state of
the rules governing the 2020 election demonstrates the
Framers’ wisdom in leaving the “times, places and
manner” of congressional elections to Legislatures
alone, lest elections be decided not by the people — but
by lawyers and judges.
What was the result? By just one measure of
validity, millions more Americans voted via a process
— absentee ballots, including mail-in ballots — that
the bipartisan Jimmy Carter-James Baker commission
identified as “the largest source of potential voter
fraud” in the wake of the contested 2000 election.
Building Confidence in U.S. Elections: Report of the
Commission on Federal Election Reform at 46 (Sept.
2005).
The Framers envisioned an election process
governed by the people’s elected representatives, under
democratically achieved and clearly understood rules.
Instead, the 2020 election disintegrated into a battle of
highly paid attorneys, forum-shopping for friendly
18
judges to impose desired election policies, on ad hoc
and even openly contradictory bases, for partisan
political advantage, as described infra. Far from their
claims of defending democracy, these partisan
attorneys brought strategically chosen litigation to
challenge unfavorable election laws to make them
more favorable to their candidates.
A. The 2020 Federal Election Devolved into
a Battle for Court Decisions to Overrule
Legislatively Prescribed Regulations.
In 2020, a single election law firm was “paid more
than $49 million.... Most, if not all, of those payouts
are from Democrats or groups with ties to Democrat
causes.”5 “Republican lawyers say that is likely just a
fraction of what Perkins Coie6 has received, because it
doesn’t include legal work for many left-wing
nonprofits.”7 Meanwhile, “Jones Day has billed the
Republican Party $12.1 million since 2019.”8
5
C. Spiezio, “Tight election keeps spotlight on Perkins Coie’s
political law team,” Reuters (Nov. 4, 2020).
6
The law firm Perkins Coie has since spun its political law
division off into a new firm, Elias Law Group, to “engag[e] more
directly in the political and electoral process.” See Perkins Coie
press release (Aug. 22, 2021).
7
R. Mills & T. Hoonhout, “Democratic Legal Activist Marc Elias
Has Spent a Career Preparing for the 2020 Election Fight,”
National Review (Nov. 3, 2020).
8
D. Jackson & D. Roe, “Big Firms Bring in Millions as Hundreds
of Election Lawsuits Rage Across the Country,” The American
Lawyer (Oct. 15, 2020).
19
[Perkins Coie,] once best known for
representing tech companies in the Pacific
Northwest, has established itself as a key
player on the national political scene,
with the Democratic National Committee and
other Democratic Party groups and candidates
as core clients.
The leader of its political law group, Marc
Elias, has become a quasi-celebrity among
Democrats, with more than 180,000 Twitter
followers.
This election cycle, he has
represented Democrats in litigation over
voting rights in more than two dozen states,
notching a number of successes.9
Each of these lawsuits in “more than two dozen
states” occurred before Election Day. And the vast
majority sought exactly the same effect as in the
instant case — judicial “legislation” overturning the
settled election laws passed by democratically elected
state legislatures.
The lawsuits often targeted
Regulations designed to curb abuse of absentee voting
and “ballot harvesting” by politicized interest groups.10
It is reported that Elias himself brought “more
than 200 pre-election lawsuits.”11
9
See C. Spiezio, supra (emphasis added).
10
E. Felten, “The Left’s legal top gun Marc Elias isn’t finished
with democracy yet,” RealClear Investigations (Mar. 24, 2021).
11
Id.
20
One early lawsuit was filed in 2016 against
Alabama, challenging the state’s requirement of a
photo ID to vote. The case took nearly five years to
litigate, and the Eleventh Circuit eventually upheld
the Alabama law, but only after the 2020 election
concluded. See Greater Birmingham Ministries v. Sec’y
of Ala., 992 F.3d 1299, 1337 (11th Cir. 2021)).
The pace of court challenges to state election laws
exploded in 2019 and 2020.
The pandemic accelerated this process in 2020.
Through settlements and litigation, Mr. Elias
and his colleagues wielded a massive budget to
sustain a campaign of litigation that forced
states to adopt Democratic election-law
priorities against the will of the legislature.
Covid became an excuse to upend the law, but
the end result was widespread chaos driven by
ever-shifting rules intended to benefit one side.
[D. Rivkin & J. Snead, “Moore v. Harper and
Marc Elias’s Curious Idea of ‘Democracy’,”
Wall Street Journal (Aug. 1, 2022).]
Elias and his colleagues sued Michigan over its law
requiring voters seeking absentee ballots to apply inperson or by mail. Michigan also requires absentee
ballots to be delivered in-person, by mail, or by an
immediate family member, to prevent “ballot
harvesting” by political parties and interest groups.
The district court denied an injunction with regard to
absentee ballot harvesting. Priorities USA v. Nessel,
487 F. Supp. 3d 599, 620 (E.D. Mich. 2020).
21
Partisan lawyers attacked long-standing state
laws requiring all absentee ballots to be received by
the close of the polls on Election Day in Oklahoma,12
Texas,13 South Carolina,14 Arizona,15
12
DCCC v. Ziriax, 487 F. Supp. 3d 1207, 1215 (N.D. Okla. 2020).
The District Court denied the request for an injunction. Id. at
1237.
13
In Richardson v. Flores, 28 F.4th 649 (5th Cir. 2022), a district
court required Texas to accept tardy ballots, but long after the
election, the Fifth Circuit reversed and remanded with
instructions to dismiss the case.
14
In Middleton v. Andino, 488 F. Supp. 3d 261, 307 (D. S.C. 2020),
the district judge J. Michelle Childs (since elevated to the D.C.
Circuit) enjoined South Carolina’s witness signature requirement
for absentee ballots, which was upheld by the Fourth Circuit, with
a blistering dissent which asserted: “The Constitution makes it
clear that the principal responsibility for setting the ground rules
for elections lies with the state legislatures.... The majority’s
disregard for the Supreme Court is palpable. The Supreme Court
has repeatedly cautioned us not to interfere with state election
laws in the ‘weeks before an election.’” Middleton v. Andino, 990
F.3d 768, 771-772 (4th Cir. 2020) (Wilkinson & Agee, J.J.,
dissenting). The Supreme Court reversed, with a concurrence
from Justice Kavanaugh.
“[T]his Court has repeatedly
emphasized that federal courts ordinarily should not alter state
election rules in the period close to an election. By enjoining
South Carolina’s witness requirement shortly before the election,
the District Court defied that principle and this Court’s
precedents.” Andino v. Middleton, 141 S. Ct. 9, *10 (2020)
(Kavanaugh, J., concurring) (internal citation omitted).
15
Voto Latino Foundation v. Hobbs, 2020 U.S. Dist. LEXIS
108435 (D. Ariz. 2020). The suit was eventually settled by
Democrat Secretary of State Katie Hobbs.
22
Wisconsin,16 Minnesota,17 and Georgia,18 among others.
16
On appeal, the Seventh Circuit reversed the district court’s
grant of an “extra” week for tardy ballots, noting that “For many
years the Supreme Court has insisted that federal courts not
change electoral rules close to an election date.... The Supreme
Court has held that the design of electoral procedures is a
legislative task....” Democratic Nat’l Comm. v. Bostelmann, 977
F.3d 639, 641-42 (7th Cir. 2020).
17
Carson v. Simon, 494 F. Supp. 3d 589, 592 (D. Minn. 2020). On
appeal, the Eighth Circuit reversed in part a dismissal on
standing grounds, holding that “the extension of the deadline
likely violates Article II, Section 1 of the Constitution because the
Secretary extended the deadline for receipt of ballots without
legislative authorization.” Carson v. Simon, 978 F.3d 1051, 1054
(8th Cir. 2020).
By its plain terms, the Electors Clause vests the power to
determine the manner of selecting electors exclusively in
the “Legislature” of each state.... Simply put, the
Secretary has no power to override the Minnesota
Legislature. In fact, a legislature’s power in this area is
such that it “cannot be taken from them or modified” even
through “their state constitutions.” McPherson, 146 U.S.
at 35; see also Palm Beach, 531 U.S at 76-77. Thus, the
Secretary’s attempt to re-write the laws governing the
deadlines for mail-in ballots in the 2020 Minnesota
presidential election is invalid.... There is no pandemic
exception to the Constitution. [Id. at 1059-1060.]
18
Georgia’s law clearly required all ballots to be received by 7:00
p.m. on Election Day in order to be counted. O.C.G.A.
§ 21-2-386(a)(1)(F).
The Eleventh Circuit overturned an
injunction from the district court requiring counting of ballots
received up to three days after the election. “The United States
Constitution still gives States the power to set the ‘Times, Places
and Manner of holding Elections for Senators and
Representatives.’ U.S. Const. art. I, § 4, cl. 1.... Instead, the
district court manufactured its own ballot deadline.” New Ga.
Project v. Raffensperger, 976 F.3d 1278, 1279-80 (11th Cir. 2020).
23
Elias sued Texas over legislation ending the
practice of operating “mobile voting location” vehicles.
Gilby v. Hughs, 2020 U.S. Dist. LEXIS 178465, at **34 (W.D. Tex. 2020). On appeal, the Fifth Circuit
sustained the sovereign immunity defense, and
remanded to the district court with instructions to
dismiss. Texas Democratic Party v. Hughs, 997 F.3d
288, 291 (5th Cir. 2021).
The Texas Democratic Party filed suit against
Texas over its law allowing senior citizens 65 and older
to obtain a “no-excuse” absentee ballot, while requiring
younger voters to show a need for the absentee ballot.
The district court granted an injunction requiring
Texas to allow “no-excuse” absentee voting to all
voters. Texas Democratic Party v. Abbott, 461 F. Supp.
3d 406 (W.D. Tex. 2020). On appeal, the Fifth Circuit
reversed and remanded. Texas Democratic Party v.
Abbott, 978 F.3d 168, 194 (5th Cir. 2020).
B. Election Lawfare Does Not Seek
Principled, Consistent Outcomes,
Damaging Confidence in Elections.
Amidst a confusing tangle of attacks on state
election laws in the weeks leading up to an election,
perhaps the most stunning effort was Elias’ attack on
state laws determining which political party would
receive top placement on the Election Day ballot.
Elias attacked a Texas law providing that the
party in control of the governorship would receive the
top line on the ballot. The court held that “[n]o
judicially discernable and manageable standards exist
24
to determine what constitutes a ‘fair’ allocation of the
top ballot position, and picking among the competing
visions of fairness poses basic questions that are
political, not legal.” Miller v. Hughs, 471 F. Supp. 3d
768, 779 (W.D. Tex. 2020) (quoting from Jacobson v.
Fla. Sec’y of State, 974 F.3d 1236, 1242 (11th Cir.
N2020) (internal quotations omitted). The case was
decided against Elias on July 10, 2020.
While litigating the Texas case, Elias was
simultaneously suing Minnesota over its law, which
was directly opposite that of Texas. Minnesota law
actually gives ballot placement to all major parties, in
reverse order of their respective votes in the last
governor’s election, in a system reminiscent of the NFL
draft attempt to achieve parity by rewarding last-place
teams with highest draft picks. Since Minnesota had
a Democrat governor, this gave Republicans favorable
ballot position.
In Texas, Elias argued that the Constitution
forbade the state from granting favorable ballot
position to the party in power. In Minnesota he
argued that the Constitution forbade the state from
granting favorable ballot position to the party out of
power. But the Eighth Circuit held that the law “does
not in any way restrict voting or ballot access,” and
dismissed Elias’ challenge. Pavek v. Simon, 967 F.3d
905, 908 (8th Cir. 2020). The dismissal came on July
31, 2020, exactly three weeks after Texas dismissed
his lawsuit arguing the exact opposite position.
Elias also sued Arizona, which provides that ballot
placement is determined on a county-by-county basis,
25
with top placement in each county going to the party
capturing a majority of votes in that county in the
previous governor’s election. The case received a
stipulated dismissal without prejudice from the
district court in June 2022. See Mecinas v. Hobbs,
2022 U.S. Dist. LEXIS 98610 (D. Ariz. 2022).
New York also determines ballot placement in
favor of the party in control of the governorship. N.Y.
Elec. Law 7-116. New York has long had Democrat
governors. Democrats have not challenged New York’s
statute.
Inconsistent positions were also taken on issues
other than ballot placement. Just three months after
the 2020 election, Elias represented New York Rep.
Anthony Brindisi in a lawsuit challenging his loss to
Republican Claudia Tenney. Despite widespread
denunciations by Democrats of Donald Trump’s “false”
and “baseless” claims of voting machine error in 2020,
that suit alleged faulty voting machines and
“complained about procedural faults with the conduct
of the voting process, alleging failures to comply
with New York State election law...” (emphasis
added).19
‘In this case, there is reason to believe that
voting tabulation machines misread
hundreds if not thousands of valid votes
as undervotes, (supra at 4), and that these
tabulation machine errors disproportionately
19
J. Pollak, “Democrat Lawyer Marc Elias Claims Faulty Voting
Machines in New York Race,” Breitbart (Feb. 3, 2021).
26
affected Brindisi, (id.). In addition, Oswego
County admitted in a sworn statement to this
Court that its tabulation machines were
not tested and calibrated in the days
leading up to the November 3, 2020
General Election as required by state law
and necessary to ensure that the counts
generated by tabulation machines are
accurate. [Id. (bold added)].
Elias demanded a hand count of the ballots.
Tenney was eventually declared the winner.
Id.
C. Upholding the Elections Clause Is
Inherently Democratic, Not “Undemocratic.”
The Framers viewed the legislative branch to
function as “the grand depository of the democratic
principle.” Max Farrand, ed., I The Records of the
Federal Convention of 1787 (Yale Univ. Press: 1911) at
48. Yet, the critics of the Elections Clause often cloak
their criticisms as being in defense of “democracy,”
preventing “disenfranchisement,” and in favor of
“everyone voting.”
The “democracy” argument fails on careful review.
Too often, for those who make the word “democracy” a
primary weapon in their political arsenal, democracy
is just in the eye of the beholder. When this Court
granted the petition in this case, even former
presidential candidate Hillary Clinton asserted that
“The Supreme Court’s decision to hear a case next
term that would give state legislatures huge power
27
over elections is the biggest threat to our democracy
since January 6,” linking to an article loaded with all
the standard catchphrases and cliches.20
Elias, for example, has “said that the election laws
he supports are part of a ‘democracy agenda,’” and he
accuses state legislatures of “an effort to suppress the
vote.”21 Other critics call a textualist reading of the
Elections Clause “going rogue to subvert the popular
vote,” which “could radically reshape American
democracy in the years to come.22
Yet the critics of the Elections Clause miss the fact
that the Legislatures the Constitution tasks with the
“time, place and manner” responsibility for federal
elections are themselves democratically elected and
subject to replacement if their voters disapprove.
Professor Tyler Cowen recently wrote:
One of the most disturbing trends in current
discourse is the misuse of the term “antidemocratic.” It has become a kind of allpurpose insult, used as a cudgel to criticize
political and intellectual opponents. Not only
is this practice intellectually lazy, but it
20
Hillary Clinton, Tweet (July 1, 2022).
21
See E. Felten, supra.
22
See R. Blaustein, supra.
28
threatens to distort the meaning and obscure
the value of democracy.23
“The danger,” Cowen warns, “is that ‘stuff I agree
with’ will increasingly be labeled as ‘democratic,’ while
anything someone opposes will be called ‘antidemocratic.’ Democracy thus comes to be seen as a
way to enact a series of personal preferences rather
than a (mostly) beneficial impersonal mechanism for
making collective decisions.” Id.
But “the American system of government has
many non-democratic (or imperfectly democratic)
elements at its heart — the Supreme Court itself, for
example, or the Senate, which gives less populous
states outsized influence.” Id.
If you attribute the failure of your views to
prevail to “non-democratic” or “antidemocratic” forces, you might conclude the
world simply needs more majoritarianism,
more referenda, more voting. Those may or
may not be correct conclusions. But they
should be judged empirically, rather than
following from people’s idiosyncratic
terminology about what they mean by
“democracy” — and, by extension, “antidemocratic.” [Id.]
This Court’s obligation is not to any political
party’s self-serving definition of “democracy,” but to
23
T. Cowen, “Stop calling everything you disagree with ‘antidemocratic,” Bloomberg News (Aug. 29, 2022).
29
the representative system which was democratically
approved by the people through their ratification of the
Constitution.
D. Allowing State Courts to Usurp the Duty
of State Legislatures Establishes an
Oligarchy, Not a Democracy.
What the North Carolina court has done is as
clear a case of the judicial branch arrogating power
expressly assigned to another branch as can be
imagined. If this Court does not step in with a clear
defense of the Constitution’s textual requirement, it
instead sends a clear signal to highly paid partisan
lawyers that elections are more about the wishes of
these lawyers than the will of the voters — and that
would do the greatest harm imaginable to our
constitutional republic and voter confidence in
elections. Justice Gorsuch’s fear would prove justified.
“A widely shared state policy seeking to make election
day real would give way to a Babel of decrees.... It does
damage to faith in the written Constitution as law, to
the power of the people to oversee their own
government, and to the authority of legislatures.”
Democratic National Comm. v. Wis. State Legis., 141
S. Ct. 28-30 (2020) (Gorsuch, J., concurring in denial
of application to vacate stay). Legislation by courts,
and elections by lawfare, is in reality an oligarchy, and
is an attack on the very “democracy” they claim to
defend.
In his concurrence in Democratic National Comm.
v. Wis. State Legis., Justice Gorsuch highlighted the
glaring problems — for both democracy and
30
constitutional governance — when courts overstep
clear constitutional lines. Citing the Wisconsin court’s
decision to add six days to the statutory Election Day
deadline to receive absentee ballots, Justice Gorsuch
explained:
Then there’s the question what these new ad
hoc deadlines should be. The judge in this case
tacked 6 days onto the State’s election
deadline, but what about 3 or 7 or 10, and
what’s to stop different judges choosing (as
they surely would) different deadlines in
different jurisdictions? ...
The Constitution dictates a different
approach to these how-much-is-enough
questions. The Constitution provides that
state legislatures—not federal judges, not
state judges, not state governors, not
other state officials — bear primary
responsibility for setting election rules. Art. I,
§4, cl. 1.... Nothing in our founding document
contemplates the kind of judicial intervention
that took place here....
It does damage to faith in the written
Constitution as law, to the power of the people
to oversee their own government, and to the
authority of legislatures, for the more we
assume their duties the less incentive they
have to discharge them.
[Id. at 29-30
(Gorsuch, J., concurring in denial of
application to vacate stay) (emphasis added).]
In ratifying the Constitution, the people of the
United States agreed that it was to be the state
31
legislatures to determine rules for elections. No one
asked the people if they wanted to transfer that
decision-making power to the courts. Surely, they
would not want to do that, because as Justice Levi
Woodbury warned:
And if the people, in the distribution of powers
under the constitution, should ever think of
making judges supreme arbiters in
political controversies, when not selected
by nor, frequently, amenable to them, nor at
liberty to follow such various considerations in
their judgments as belong to mere political
questions, they will dethrone themselves
and lose one of their own invaluable
birthrights; building up in this way — slowly,
but surely — a new sovereign power in the
republic, in most respects irresponsible and
unchangeable for life, and one more
dangerous, in theory at least, than the
worst elective oligarchy in the worst of
times. [Luther v. Borden, 48 U.S. 1, 52-53
(1849) (emphasis added).]
CONCLUSION
For the foregoing reasons, the decision of the
North Carolina Supreme Court should be reversed.
32
Respectfully submitted,
RICK BOYER
INTEGRITY LAW FIRM
P.O. BOX 10953
Lynchburg, VA 24506
PATRICK MCSWEENEY
MCSWEENEY, CYNKAR &
KACHOUROFF, PLLC
3358 John Tree Hill Road
Powhatan, VA 23139
WILLIAM J. OLSON*
JEREMIAH L. MORGAN
ROBERT J. OLSON
WILLIAM J. OLSON, P.C.
370 Maple Ave. W., Ste. 4
Vienna, VA 22180
(703) 356-5070
wjo@mindspring.com
*Counsel of Record
Attorneys for
Amicus Curiae
September 6, 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.