Thousands of lawyers are gearing up to file hundreds of lawsuits after the November 3 presidential election. Lawsuits demanding extended voting hours, extra days or weeks to count ballots, extra time for recounts and the elimination of absentee ballot rules all appear likely. We know this because more than 100 lawsuits seeking all these measures are already in courts. It is a virtual certainty that more will come after the election. And all will feature the coronavirus pandemic as justification for setting aside statutory election rules.
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. 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 of the U.S. Constitution delegates to 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, in response to a flood of pre-election lawsuits brought by the ACLU, the Democratic Party and other progressive special interest groups, 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 and postal workers have the wherewithal to comply with alterations to systems involving a great many moving parts.
Many courts are 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. But U.S. Supreme Court precedent prohibits the alteration of election provisions this close to an election. So, most pre-election interference with election laws ultimately will not succeed. Post-election judicial interference, however, threatens to instill chaos and trigger a constitutional crisis.
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 LevinMark Reed LevinFox News signs book deal with HarperCollins Former California senator prods Feinstein to consider retirement Elder pledges to replace Feinstein with Republican if he wins California recall election MORE 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," he wrote. "Litigants will attempt to use the courts to overturn the results of elections.” Levin was prescient.
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,” he wrote. “For the President and the Vice President of the United States are the only elected officials who represent all the Voters.”
The chief justice reached back to the 1892 case of McPherson v. Blacker, which held that Article II, Sec. 1 “convey[s] the broadest power of determination” and “leaves it to the legislature exclusively to define the method” of appointment. Thus, in Rehnquist’s view “the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance.” He concluded with the firm admonition that “in a Presidential election the clearly expressed intent of the legislature must prevail.”
Judicial orders contravening a state legislature’s established procedures do 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 Kavanaugh put this point in sharp focus in his concurrence earlier this month in the Supreme Court’s order staying a South Carolina court’s decision 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."
Courts, and particularly trial level courts, must resist progressive demands for inappropriate post-election interference. If not, a state legislature serious about its constitutional authority may well declare intrusive court orders null and void and instruct election officials to ignore judicial directives contravening state law. Responsibility for the resulting constitutional crisis will rest with the courts.
Pete Hutchison is president of the Landmark Legal Foundation, a conservative legal advocacy group.