Georgia
GOP judge shreds election law, gives Dems advantage by Daniel Horowitz, 5/12/17, Conservative Review
Throughout
the past year of election-law court cases, we’ve observed that the judiciary is
not only rendering elections moot by becoming the final arbiter and serving as
a veto on every political and social issue of our time; they are downright
preventing conservatives from even winning elections.
The
latest example is in the Georgia runoff between Karen Handel and Jon Ossoff to
fill Tom Price’s suburban Atlanta seat.
Last
Thursday, U.S. District Judge Timothy Batten, a GOP appointee, legislated from
the bench and declared that the state must leave voter registration open until
30 days before the June 20 runoff, instead of cutting it off 90 days prior to
the runoff (as required by state law).
In
other words, even though a runoff is a continuation of the initial election,
those who weren’t registered to vote in Round 1 will be able to participate in
the 6th Congressional District runoff.
That
is fine public policy if state law permits it, but the notion that there is a
federal right precluding states from making this common sense rule is absurd.
This law has been in place for over a decade, including under the tenure of a Democrat
secretary of state. Yet Democrats didn’t find a need to legislate from the
judiciary until they needed it in this election.
Now
that the courts are legislating new registration dates in middle of an ongoing
election, state election
officials are concerned they will
not be ready with testing of new equipment thanks to the changes. This is part
of a growing trend of federal courts interfering in ongoing state and local
elections after decisions were already made.
For
example, last year the Fourth Circuit Court of Appeals “struck down” North
Carolina’s election maps after candidates had already spent great amounts of
time and money campaigning in the district duly drawn by the state
legislatures.
A
couple of other observations are also in order:
o
Isn’t it interesting how the courts
recently said that the federal government, which has plenary power over
immigration, can’t
force states to comply with immigration law?
Yet at the same time, the unelected branch of the federal government can
control policies that are manifestly controlled by local government? What
happened to the “anti-commandeering” doctrine?
o
Many observers thought
that the 2013 Shelby County case, wherein the court struck down one provision of the Voting
Rights Act, would lead to an era of states having more control over election
law. Quite the contrary — it has led to successful lawsuits striking down every
aspect of state law. We’ve seen the courts in recent months nullify
every Republican redistricting map; mandate
weeks of early voting; prevent
states from asking for photo ID at
the polls or verify
proof of citizenship for voter registration; block
states from combating voter fraud;
and generally
require the implementation of any administrative method or procedure
of voting that is preferred by Democrats.
o
The growing trend of the courts
becoming the sole and final arbiter of political disputes between the two
parties over election law — and almost always in favor of Democrats — will
force GOP leaders to confront judicial tyranny. We know Republicans don’t
really care about the social transformation being forced on us by the courts
with social issues and immigration, but don’t they care about their own power?
They won’t be able to win elections anymore if courts side with Democrats on
every election-law dispute and strike down every GOP map (while leaving in place
Democrat gerrymanders).
o
Once again, a GOP judge sided with a
Democrat political outcome. The problem is, no Democrat appointee ever sides
with Republicans, which creates a permanent imbalance in the judiciary.
Unless
something is done to strip the federal courts of power over election law, the
courts are going to continue redefining the Constitution and interpreting the
VRA in the strictest way possible. The entire premise of judicial supremacy and
interpreting federal election law so stringently against the states violates
the entire constitutional scheme behind election law.
As a
baseline, the Election Clause [ Art. I, §4, cl. 1] vests states with the power
to regulate the times, places, and manner of federal elections. Speaking at the
Virginia Ratifying Convention, James Madison defended this arrangement, because
"[i]t was found necessary to leave the regulation of [federal elections],
in the first place, to the state governments, as being best acquainted with the
situation of the people.”
Even
though the second half of the Election Clause grants Congress the right to
regulate elections when necessary, it’s important to remember that A) it was
only to be in extraordinary circumstances [Hamilton, Federalist
No. 59], B) the federal courts have no
power over enforcing this issue, and C) it was primarily for the purpose of
ensuring that elections are indeed held and Congress is not abolished
altogether by the states [Hamilton, Id].
The
notion that Congress, much less the courts, could get involved in the minutiae
of election procedures flips the Constitution on its head. Indeed, Roger
Sherman, one of the greatest of the founders, made it clear that even the rare
intervention of Congress was for the basic method of holding an election — but
“the qualifications of the electors are to remain as fixed by the constitutions
and laws of the several states.” [A Citizen of New Haven: Observations on the New Federal Constitution, Connecticut Courant, Jan. 7, 1788]. See also Madison in
Federalist No. 52.
The
notion that the federal government could get involved in the number of days of
registration would have been foreign to our founders. Even if we defend the
continuation of the Voting Rights Act’s interventions because they were needed
decades ago to stop Jim Crow laws, it is simply against the spirit of the
Constitution for the courts to apply those laws beyond their original intent.
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