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:
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.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.