[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.”
~ James Madison at the Virginia Ratifying Convention
Poor Arizona. The Grand Canyon State can’t seem to get a break from the Ninth Circuit in protecting its sovereignty and the integrity of its elections.
As it relates to state voter integrity laws, it has come to the point where federal judges are declaring any form of electioneering pursued by George Soros to be mandated by law and/or the Constitution. States are being precluded from even regulating a specific administrative procedure for voting or registration or using common sense regulations to protect the franchise from fraud. The courts have declared the American voter in general, and non-whites in particular, to be impotent in their ability to register to vote and cast ballots without hand-holding and molly-coddling anomalous tactics promoted by the far-left.
The latest case involves a lawsuit against Arizona’s House Bill 2023, which prohibits third-party organizations from collecting absentee ballots and submitting them en masse to the board of elections in what is widely referred to as “ballot harvesting.” This was a reasonable exercise of a state’s near-plenary power over methods and procedures of elections to ensure there is no tampering or mass fraud. The law provides exemptions for family members, caregivers, or postal workers who can gather multiple ballots from individual early voters to submit to the polls. Thus, there is nobody who is being disenfranchised with no recourse to cast a ballot simply because a Soros-style community organizing group is prohibited from harvesting ballots.
It doesn’t take a genius to understand why ballot harvesting is a prima facie recipe for voter fraud. Unscrupulous community organizers can simply send in hundreds, if not thousands, of absentee ballots using known names and addresses. There is no way for election officials to verify the veracity of mail-in ballots, even in states with photo ID requirements for in-person voting. At present, Texas Attorney General Ken Paxton has launched the largest voter fraud investigation in the state’s history after concerns that thousands of signatures collected for mail-in ballots by third-party organizations didn’t match the known signatures of the names on the ballots.
Non-whites can’t vote without the assistance of a third-party?!
In come various Democrat groups and the Clinton campaign, suing Arizona for somehow disenfranchising voters [Feldman v. Arizona secretary of State’s Office]. Scandalously, they assert that this law is invidious and discriminates against non-white voters. Yes, as is the case with photo ID requirements, proof of citizenship, early voting, an option for straight-ticket voting, and placement of extra polling stations, non-white voters are evidently too dumb and impotent to properly register and cast ballots, even during the modern-era of mass communication and transportation — unless Democrats are allowed to work their magic.
This lawsuit was so outlandish that last month even the Obama-appointed district judge, Douglas L. Rayes, refused to issue an injunction against the law for this election, pending the outcome of litigation. He rightly observed that this law “simply regulates an administrative aspect of the electoral process,” over which states have full control unless Congress intervenes. And there is nothing in the Voting Rights Act that grants voters, particularly minorities, a right to have others deliver their absentee ballots to the polls. That is an administrative policy question left up to the states.
While the Ninth Circuit initially refused to overturn Judge Rayes by issuing a preliminary injunction against HB 2023, earlier this week they granted an expedited review of the case. During oral arguments on Wednesday, according to numerous media outlets at the hearing, the appellate judges clearly signaled their intention to tamper with the law.
Despite the law being in effect during the primaries and plaintiffs not being able to identify a single voter who couldn’t cast a ballot as a result of the law, Chief Appeals Court Judge Sidney Thomas seemed to agree with the Democrat position on disparate impact:
Judge Sidney Thomas said that ignores evidence that 14,000 people living on the 2.8 million acre Tohono O’odham reservation have no postal service
“That’s a significant barrier that’s different from the barrier that white citizens would have in Phoenix,’’ he said.
“There’s no comparative white group,’’ Thomas continued. “There’s no white reservation.’’
The judge also noted a similar situation in the largely Hispanic border community of San Luis. [Arizona Capital Times]
Appellate Judge Sandra Ikuta also expressed concerns that this law disenfranchised Latinos and Native Americans.
You will never find a judge requiring a state with only whites in rural areas to add extra polling stations or offer more days of early voting because they are more isolated.
Taking discrimination accusations to a new low
Not only is disparate impact theory a complete distortion of the Voting Rights Act, it is offensive and simply wrong to assume that voter integrity laws target minorities. And in this case, such an accusation is particularly divorced from reality. As Arizona Assistant Attorney General Karen Hartman-Tellez pointed out, there are plenty of white rural communities that also lack postal service in secluded parts of the state. These are the comforts people who live in remote areas relinquish. There are many benefits to rural life too. The point is that convenience of delivering absentee ballots, as it relates to remote communities, is a political debate for a state legislature, as is the case for questions regarding easy access to other state services. It is absurd for a court to require acceptance of ballot harvesting as a matter of federal law.
What is doubly absurd here is that Democrats usually demand special treatment for urban voters, such as extra polling stations in big cities. In Wisconsin, they got a federal judge to require more early voting centers in urban areas “because not everyone can get downtown easily.” Now they have the nerve to assert that a law that would be more inconvenient for rural areas also disproportionality hurts minorities, even though nobody would deny that — aside from the Indian reservations — most rural communities are overwhelmingly white! As is always the case in outcomes-based jurisprudence, the liberal judges arrive at the desired conclusion using conflicting rationales. Either way, the result is always to bolster the Democrat GOTV operation. You will never find a judge requiring a state with only whites in rural areas to add extra polling stations or offer more days of early voting because they are more isolated.
In reality, this has nothing to do with Native American communities or the lack of postal service in some areas. Liberals are just using that example as the straw man for the lawsuit in order to get standing. The reality is that voter harvesting has been very successful in registering Democrat voters all over Arizona, including in urban areas that have easy access to mail and certainly don’t need assistance. There is nothing wrong with ballot harvesting that is not rooted in fraud, but Democrats are seeking to codify their political practices into law.
As I noted when discussing the North Carolina early voting case, one could conjure up a disparate impact theory to attack any law on the assumption that these administrative procedures will help or hurt one particular group based on their habits, culture, and location. But that doesn’t mean the law is discriminatory. If Republicans succeed in gaming out early voting on Saturdays at rural gun clubs the same way Democrats succeed in GOTV on Sunday with black churches, does that mean the state must provide early voting on Saturday? These are political questions that are decided by the party that wins the spoils of war in an election and controls the legislature, not the courts.
The long-term impacts of judicial supremacy, disparate impact, and absurd rules of standing on state election law
There are several systemic problems evidenced from the series of court cases on election integrity laws we’ve chronicled in this column over the past few months:
The fact that minorities tend to vote Democrat doesn’t vest them with greater power or extra rights to mandate more voting procedures and conveniences any more than rural whites could demand more conveniences in voting because providing such service helps the Republican Party. Courts are adulterating the VRA and are taking the concept of disparate impact to such an absurd extreme that non-whites are now enjoying greater benefits simply because it helps the Democrat Party. To quote Thomas Sowell, “When people get used to preferential treatment, equal treatment seems like discrimination.”
This Arizona case also demonstrates how liberals only need to win at one level in order to enact their election agenda. While the district judge respected the balance of power, the Ninth Circuit is prepared to crush the state. In many instances the Supreme Court doesn’t grant cert to hear an appeal from the Ninth Circuit. In addition to general reforms of court jurisdiction, Congress would be wise to save Arizona from the clutches of the Ninth Circuit by placing it into a different appellate jurisdiction.
A statutory fix of laws such as the VRA and the Motor-Voter law won’t help because judges have shown that when they lack statutory “latitude” to enact their agenda, they have no compunction to enshrine early voting, ballot harvesting, etc. into the First, Fourteenth, and Fifteenth Amendments.
We have a real constitutional crisis on our hands. When the far-left takes over the political institutions, there is recourse through elections. But when progressives take over the courts, redefine the Constitution, statutes, the contours of fundamental rights, and the balance of federalism as it relates to election law, we can’t even win elections anymore.
If Hillary ultimately wins this election, the states will have no choice but to ignore the courts as it relates to precedent, outside of the narrow ruling for a legitimate plaintiff suing for an authentic fundamental right. Whether they like it or not, state judges will have to follow the lead of Alabama Chief Justice Roy Moore in interpreting precedent of a decision in accordance with the Constitution and federal statute and not the Democrat Party platform. Otherwise, free and fair elections will be a thing of the past.
 James Madison in defense of the Election Clause [ Art. I, §4, cl. 1], which vests states with the power to regulate the times, places, and manner of federal elections. [3 Records of the Federal Convention of 1787, p. 312 (M. Farrand ed. 1911)].
Even though 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 #59] B) the federal courts have no power over 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 minutia 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 #52.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.