State and federal courts are improperly interfering with the presidential election, threatening a constitutional crisis this November. The Democratic party, ACLU, and other left-wing special interest groups have filed hundreds of lawsuits throughout the country. The lawsuits demand that judges throw out state voting laws including voter registration standards, absentee voting rules, voter identification requirements, and deadlines for both returning and counting ballots. These pre-election lawsuits portend more to come following the November election.
Courts appear eager to interfere. The Pennsylvania Supreme Court extended the commonwealth’s statutory time limits for counting ballots. A federal court extended Wisconsin’s statutory deadline for voters to register and for election officials to process absentee ballots. Another federal judge in Atlanta extended Georgia’s time requirements for returning mail ballots. These are but a few examples.
Appellate courts, including the United States Supreme Court, have stayed some of these orders, but some are being implemented. For example, in Virginia and Nevada, state election officials have either consented to dubious lawsuit demands or unilaterally changed the voting laws they are duty bound to enforce.
These lawsuits all purport to arise out of COVID-related concerns for public health. But make no mistake, the Left’s plan is to make these changes permanent.
Here’s the problem: Under the Constitution the method for conducting presidential elections is the sole purview of state legislatures. Judicial orders and state executive branch interference with the established statutory process intrude on a fundamental power delegated by the sovereign people to those legislatures. Courts simply do not have authority to run roughshod over states just because they disagree with state policy during a pandemic. State legislatures that take the Constitution seriously should and will defend their authority. It is time for courts—especially trial courts—to accord much greater deference to the exercise of that authority.
Article II, Sec. 1, cl. 2 gives state legislatures exclusive authority to establish the process for selecting presidential electors. State governors and election officials are bound by the legislature’s procedures. The Supreme Court has held that courts have limited powers of review. Yet, courts or election officials in many states are attempting to change state election laws by expanding deadlines, reducing voter identification requirements, and imposing sweeping vote-by-mail schemes. In most cases, these impositions cavalierly assume that election workers have the wherewithal to comply with alterations to systems involving a great many moving parts. Post-election judicial interference will make matters much worse.
How did we get here? Prior to the 2000 presidential election fiasco in Florida, which resulted in the Supreme Court’s Bush v. Gore decision, federal courts were loath to intervene in election controversies. But as Mark Levin warned in his first book, Men in Black: How the Supreme Court is Destroying America, the Supreme Court’s embrace of the equal protection clause in that case was a dangerous mistake. “[F]ederal judicial intervention in state and federal elections may now become commonplace. Litigants will attempt to use the courts to overturn the results of elections.” Boy, was he right. (Full disclosure: Levin serves as Landmark Legal Foundation’s board chairman.)
Here we are 20 years later dealing with well over 100 lawsuits demanding the alteration or elimination of state election integrity laws. Many of these cases are yielding court orders directing state election officials to alter or ignore state statutory ballot protections and deadlines. And in each case these orders are based largely on equal protection claims flowing from Bush v. Gore.
Dozens, if not hundreds, of additional lawsuits raising equal protection claims will certainly follow the November election. Courts embracing an expansion of the Bush v. Gore decision threaten to exacerbate uncertainty in election results and sow doubt among the electorate. But state legislatures have a powerful tool that can restore order: the Constitution.
Chief Justice William Rehnquist’s concurring opinion in Bush v. Gore makes the case for a state legislature’s primacy in establishing procedures for selecting presidential electors. “In the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest. For the President and the Vice President of the United States are the only elected officials who represent all the Voters.”
He noted that general rules do not apply to this situation. “[I]n most cases comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law. That practice reflects our understanding that the decisions of state courts are definitive pronouncements of the will of the States as sovereigns.” He concluded, however, that “there are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of state government.”
Article II, Section 1, cl. 2 establishes one of these “exceptional cases”—vesting in the state the power to “appoint, in such Manner as the Legislature thereof may direct,” electors for President and Vice President. In the 1892 case of McPherson v. Blacker, the Supreme Court ruled that this section “convey[s] the broadest power of determination” and “leaves it to the legislature exclusively to define the method” of appointment. Relying on McPherson, Chief Justice Rehnquist’s conclusion was clear. “Thus, the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance.” He continued by concluding that “in a Presidential election the clearly expressed intent of the legislature must prevail.”
Judicial orders contravening a state legislature’s established procedures not only intrude on the legislature’s authority; they also blithely assume election officials will be able to do their jobs when faced with last minute procedural changes and performance expectations in the middle of a pandemic. Justice Brett Kavanaugh hit the nail on the head concurring in the Supreme Court’s recent order staying a South Carolina court’s order changing election procedures. Legislative decisions either to change or not change election procedures due to the coronavirus “should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”
The bottom line is that state legislatures have a responsibility and the right to defend their constitutional authority. It should come as no surprise that some legislatures will take their job seriously. Courts must recognize that orders flouting a state legislature’s “clearly expressed intent” for the selection of presidential electors threaten the constitutional order.
Courts, and particularly trial level courts, must resist Progressive demands for inappropriate post-election interference. It is entirely likely that the failure to do so will create a scenario where a state legislature declares court orders null and void and instructs election officials to ignore judicial orders contravening state law. Responsibility for the resulting constitutional crisis will rest with the courts.