New York University (NYU) Law professor Rick Pildes is among a partisan academic group of colleagues, including Bob Bauer who worked for the Obama administration, and Richard Revesz, who is on leave to run Biden’s  Office of Information and Regulatory Affairs (OIRA).  

Pildes recently wrote a Guest Essay in the New York Times (one of many) where he opines on the SCOTUS decision concerning state voting procedures, and whether state legislatures are excessively independent in determining voting and election rules (he prefers that courts have excessive judicial review powers to unilaterally override legislators, depending of course on who is running the legislature). In so arguing, he adds to the long list of law school professors who are deliberately misleading the public on law, the Constitution, the nature of American government, and their own rights and interests.

There are some formal issues to consider in this case, including the Court’s dissent by Justice Clarence Thomas, and the concept of “mootness,” but I’d like to leave those technical and law factors to others, and focus on what Pildes does in his NYT essay: deliberately twist the law in order to serve the DNC, and by so doing, abandon law’s professional standards. 

Recall what actually happened in 2020: COVID was used as a pretext to go into states with legal teams hired by the DNC (largely directed by political strategy law firm Perkins Coie) to intimidate judges by asserting an “emergency” which necessitated a sudden, and undisclosed, change in voting procedures. A chorus of law professors, such as Berkeley Law dean Erwin Chemerinsky, provided a nearly nonstop running media narrative, asserting that exceptions to nearly all voting rules needed to be suddenly accepted, due to the “dangers” of showing up at a voting station in person, or being burdened with restrictions on voting time and place, or even to provide proof of voter eligibility.  COVID was used to completely bypass the Constitution.

A strange thing about the NYU law professor’s argument is that he suddenly criticizes legal ambiguity, and fears that vague language will make voting rules set by legislature harder to challenge, while exposing the court to endless accusations of overstepping its authority.

This is quite a leap in constitutional doctrine: But the law professor wants to have his cake and eat it too: vague legal language serves him just fine when the issue may be legal “workaround” ploys in voting policy, but for the federally centralized voting authority that the Left craves, it puts them in a position of disadvantage: the Left is really bad at explaining its political rationale, or justifying its authoritarian impulses. It prefers using courts to simply make rules, and public consent be damned.

The centerpiece however, of Pildes’ legal disingenuousness is when he brings up Wisconsin:

“For illustrative purposes, let’s say in 2024 the Wisconsin state legislature passes a law establishing deadlines for requesting or returning absentee ballots, but a state court rules those deadlines unconstitutional because they contradict the state constitution’s guarantee of the right to vote. The losing party will now turn to the federal courts and argue that the state court has gone “too far” in its interpretation of the state constitution.”

Readers may remember that Wisconsin was one of the most corrupted states in 2020 (where a number of NY DNC-affiliated lawyers parachuted into towns in order to “oversee” voting and counting).  DNC operations created just enough time and uncertainty in ballot collection and counting, to deny Trump its electoral votes. 

Indeed, the Wisconsin chief justice at the time, Patience D. Roggensack, wrote one of the most insightful, damning dissents in Wisconsin legal history when she put her finger on what was allowed to happen in her state, in Trump v. Biden, et al: “Four justices on this court cannot be bothered with addressing what the statutes require to assure that absentee ballots are lawfully cast.”

Pildes appears to invoke Wisconsin as a mere random example, but he clearly knows that what happened in 2020 with illegal absentee ballots and delayed vote tallying, has to occur again in 2024 and beyond -- and he doesn’t want the state judiciary accused of overstepping its boundaries if it too liberally interprets a “right to vote” as an opportunity to defraud.

This is why the Supreme Court’s recent ruling is something he calls “dangerous” because it leaves open the use of the federal courts to reasonably review election fraud claims from the states, but also protects the principle of separation concerning legislation. This is a double whammy for Pildes, because what he and his client, the DNC, desperately want, is tighter language around how the courts may preempt state legislative initiatives, while selectively using the courts to override legislation they don’t like.

Pildes also gets away with an unbelievable about-face when he declares:

“Elections benefit greatly from clear rules laid out well in advance of Election Day. Such rules minimize voter confusion; bolster the ability of election officials to communicate clear, consistent messages to voters.  Clear rules specified in advance are all the more important in this era of pervasive distrust and suspicion concerning elections.”

This mendacity, given the DNC’s explicit, engineered use of a “pandemic” to influence 2020 elections, should be instructive to readers as to what extent the progressive Left will go, and making law professors into something other than trusted sources of knowledge and judgement.

Pildes' NYT essay ends as a “moot” point itself, because he not only misunderstands and misrepresents the “independent state legislature theory,” but doesn’t seem to have contextual awareness of both the Election Clause and the Electors Clause of the Constitution.  He also seems to misunderstand the position of the Chief Justice: he did not “endorse a weaker version of the independent legislature theory,” but merely reminded anyone paying attention that judicial review is a fairly routine procedure, and that it simply performs in a “reasonable” manner if it is to stay within constitutional bounds of separation: the Chief Justice advances a strong separation theory, not a weak independent theory.

Matthew G. Andersson is a former CEO, law and policy writer, and the author of the upcoming book Legally Blind concerning how ideology affects law. He has been featured in the Wall Street Journal, the New York Times, the Financial Times, and has testified before the U.S. Senate. He is a graduate of the University of Chicago, and studied with White House National Security Advisor W.W. Rostow at the Johnson School of Public Affairs.

Image: Aaron Lucas