The government can force you to purchase the private product of the greedy insurance cartel, but it can’t require you to show photo ID in order to protect the integrity of your vote, which is the foundation of a free society. So says America’s federal judiciary, upon which we have bestowed the sole rulership over the Constitution. This time, the court’s attack was on the Texas voter ID act.
There are very few things the GOP actually tries to accomplish. We must understand that unless the courts are reformed, all of them will be “struck down.” The courts do not have a constitutional judicial veto on public policy issues, but we have accepted this notion of judicial supremacy over political issues. It is imperative that we act to change that.
Last July, the normally semi-sane Fifth Circuit ruled in a 9-6 opinion that Texas’s 2011 photo ID law violated Section 2 of the Voting Rights Act, asserting that the law was passed with discriminatory intent. At the time, Judge Edith Jones wrote a scathing dissent in which she accused the majority of fanning “the flames of perniciously irresponsible racial name-calling.” Earlier this year, the Supreme Court declined to grant Texas relief from the injunction.
In response, the Texas legislature modified the bill on a number of occasions to comport with the court’s demands.
On Wednesday, U.S. District Judge Nelva Gonzales Ramos of the Southern District of Texas, an Obama appointee, put an injunction on the now-revised Texas voter ID law, asserting that it violated the Voting Rights Act because … you guessed it … somehow, only blacks and Hispanics are incapable of obtaining a photo ID, in the eyes of this enlightened judge.
Acting as the supreme god of Texas, Judge Ramos had “vetoed” the bill a total of five times over the past few years, even though Texas comported with the criteria set forth by the Fifth Circuit.
Pursuant to the Texas law, a voter must show poll workers one of seven valid photo identification cards in order to vote. And, as is the case in all other states with similar laws, the state will provide identification to those rare few individuals who lack any of those IDs, free of charge. Evidently, that is racist in the eyes of the race-obsessed judiciary. So the state legislature modified the bill to allow voters to present other forms of non-photo ID, such as utility bills and bank statements, provided that they sign an affidavit swearing that a “reasonable impediment” prevented them from obtaining a photo ID.
This should cover everyone. Right?
Well, according to Judge Ramos, because the bill prescribed a 180-day jail sentence for anyone caught lying on such an affidavit, it is tantamount to “voter intimidation” and “discriminatory.” Evidently, it’s too much to ask that people don’t lie, and evidently, only racial minorities are prone to doing so.
Teddy Roosevelt once said that “there is no enemy of free government more dangerous and none so insidious as the corruption of the electorate.” The notion that a state, which has almost full authority over the methods and procedures of elections, may not prevent voter fraud by requiring the same proof of identity to protect the franchise as to obtain the most mundane products and services in life is scandalous. That the courts would use the cause of civil rights, which was designed to prevent legitimate disenfranchisement of blacks, as a weapon to disenfranchise the entire electorate at the hands of rampant fraudulent voting is downright offensive.
This is no joke. There is a growing and dangerous trend in which lower courts are codifying their perverted sense of “disparate impact” and their racialized agenda into law. It’s outrageous enough for one to posit such an argument on a political level, but to codify such language into our laws and Constitution — and take the issue away from the people — is unforgivable.
As we’ve observed ad nauseam over the past few years, lower courts are created by Congress, and every morsel of power they wield is derived from statute, not the Constitution. Congress has a number of options at its disposal to rein in the courts, but here are just a few:
Congress can strip the courts of any power to adjudicate any case challenging the validity of a voter ID law or other voter integrity laws. That power should rest solely with state supreme courts. 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 this was only to be in extraordinary circumstances (Hamilton, Federalist No. 59); that the federal courts have no power over enforcing this issue; and that it was primarily for the purpose of ensuring that elections are indeed held and that Congress is not abolished altogether by the states (Hamilton). It’s time for Congress to use its power both over the courts and over election law to return such issues to the states and state courts.
- Congress can amend Section 2 of the Voting Rights Act to explicitly allow states to pass photo ID laws. This issue has consistently garnered super-majority support in every poll. How hard is it for Republicans to explain to the American people why we must show a photo ID to purchase Sudafed but not before voting? Why should non-citizens vote illegally in elections?
- Congress can severely limit the rules of standing so that courts do their job of adjudicating cases where there is a legitimate individual right at stake for a specific plaintiff and the grievance is real, not just speculative. This is the difference between the courts exercising judicial power over individual cases and controversies and nullifying laws directly, a power they manifestly don’t have. At present, third-party groups, such as the NAACP and the Mexican American Legal Defense Fund, are able to directly shoot at laws and use the courts as a veto. They dredge up straw-men plaintiffs with vague, broad grievances. There is no legitimate evidence that a significant number of individuals can’t obtain photo ID from the state or are harmed by simply telling the truth on an affidavit. If the courts actually functioned the way they should, they would never grant standing to such political chicanery, and in the rare event that they see a need to grant relief, it would be done on an individual basis, not in the form of “striking down” commonsense laws.
The courts are on a rampage. In recent days, they have granted unprecedented rights to illegal aliens, blocked deportations, codified sanctuary cities, further distorted marriage and sexuality, and blocked some of the president’s regulatory changes. Just yesterday, the Ninth Circuit said that a football coach can’t pray publicly. The federal court in D.C. is set to decide whether the president can keep transgenderism out of our military. And most of these cases never make it to the Supreme Court, and by the time they do, so much judicial momentum has accrued that Kennedy and Roberts feel the pressure to go along with the transformations in fashion.
Thus far, the Senate has only confirmed three circuit court nominees, and most of the remaining vacancies are either replacing good judges who retired or will not swing a circuit. Unless Congress begins showing the lower courts who is boss, we should just cancel the midterm elections. Control over Congress and over 30 state governments is meaningless if we continue to grant lower courts a monopoly over our Constitution, our society, and our culture.
Author: Daniel Horowitz
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.