Several weeks ago, I wrote a manifesto listing 12 reasons why the federal judiciary is systemically and irremediably broken. The main purpose of my recent series on the courts is to demonstrate why merely “appointing better judges” will not solve the problem unless conservatives promote wholesale reform of the judicial process. There is no single case that exemplifies my thesis better than the Seventh Circuit’s decision Monday to uphold a radical district court opinion, which mandated, among other election anomalies, extended early voting in Wisconsin.
What this means
The entire premise of in-person early voting (over and beyond absentee ballots) even as a matter of policy is illogical and against the spirit of the Constitution, at least for federal elections. But to advocate that states must adopt early voting as a matter of legality is downright insane. Yet, courts throughout the country are now taking this insanity a step further and mandating that states adopt a specific duration of early voting.
There is a silent coup against our Constitution and state sovereignty that is taking place across the nation whereby Democrats are opening up voting to all sorts of methods and procedures that make no sense, are against the tradition of an Election Day, and will bolster their majority at the expense of fair elections. Yet, it’s understandable that when Democrats are in power they will pass laws that make the methods of elections more beneficial to their electoral prospects. And that is exactly what they did when George Soros funded the Secretary of State Project throughout the last decade, successfully installing radicals into state secretary of state positions to promote early voting, implement pre-registration for minors, kill voter ID, uphold straight-ticket ballot options, and in general use taxpayer-funded resources to encourage and expand voter registration and turnout in every way possible.
Is it too late to reverse the Left’s election policies?
Likewise, it should follow that Republicans have every right, when they win governorships and state legislatures, to roll back some or all of those voting laws passed by Democrat legislatures or enacted by state officials. But this is where Democrats have the advantage. They get their unelected buddies in the courts to constitutionally mandate their election policies, many of which never existed until only recently.
Which brings us to Wisconsin. The GOP-controlled state government rolled back some of the efforts to encourage more open-ended voter registration and longer periods of early voting. Again, one can argue about the politics behind these policies — and clearly Republicans are motivated by politics (as well as fighting voter fraud) in getting rid of these expanded methods the same way Democrats were motivated by politics in implementing them — but nonetheless, as I’ve noted before, states have full power over methods and procedures of elections while federal courts have none.
In July, U.S. District Judge James Peterson, a radical Obama appointee, issued an opinion “striking down” numerous parts of the state’s election laws, including a law that limited early voting and the number of locations providing ‘election month’ services. It’s not like the laws even abolished early voting, they merely limited it to weekdays during the two weeks prior to Election Day. Yet, the radical judge had the temerity to say the laws were passed with intent to discriminate against blacks and violated the Fourteenth and Fifteenth Amendments! He threw in the First Amendment for good measure. You heard that correctly. For most of our history, most states only had one election day, as prescribed by the Constitution and a law passed by Congress in 1845, yet the Fourteenth Amendment evidently now says that 10 days of early voting is not enough! Any method or procedure for elections that Democrats can prove would boost black turnout is now mandated by the courts in their perverted phantom readings of the very document that would have never approved such a practice, much less required it.
The judge also mandated more polling locations for early voting, required the acceptance of expired student IDs at the polls, and invalidated a number of provisions clamping down on fraudulent, ineligible, or non-citizen voters. Judge Peterson alleged that the state legislature’s “preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement, which undermine rather than enhance confidence in elections, particularly in minority communities.” Never mind the disenfranchisement of the citizenry with rampant non-citizens voting in elections and the simple and reasonable remedies the state proposed to cure it. Essentially, anything short of hand-delivering minorities a ballot pre-marked with Democrat checks is now viewed as a violation of the Fourteenth Amendment.
Can “Conservative” Judges Save us from Judicial Gomorrah?
This is where things get interesting. On Monday, the Seventh Circuit Court of Appeals denied a request from the state to halt the district judge’s order and allow their election laws to remain in place for this upcoming election. No rationale was provided for denying the stay. Here’s the kicker: all three judges — Michael Kanne, Frank Easterbrook, and Diane Sykes – were GOP-appointees. Kanne and Sykes are regarded among conservatives in the legal profession as rock solid. Sykes is even on the short list of dream Supreme Court picks for conservatives.
While one cannot always read too much into the denial of a stay, this denial speaks as loudly as an affirmative opinion. To not grant deference to basic state election laws after a district judge issued a revolutionary decision creating constitutional mandates that would boggle the minds of the framers demonstrates how even conservative judges have accepted a critical mass of the cancerous Fourteenth Amendment jurisprudence of the Left when they are able to racialize the issue.
Furthermore, the fact that the same circuit panel did issue a stay just two weeks ago on another radical district judge’s ruling against parts of Wisconsin’s voter ID law (literally rewriting and legislating from the bench in that case), demonstrates that they have accepted enough of the premise of Judge Peterson’s noxious constitutional chicanery.
So much for originalist judges
An originalist in this era means someone who will not join with the Left in accepting a legal theory 21 tranches away from the Constitution, but will agree with them on the first 20. A true originalist would have to put a stay on any lower court decision on all of these election cases because, as I wrote earlier this week, courts were never given the authority to enforce even a legitimate interpretation of the Fourteenth Amendment over these type of state laws. But even if we don’t want to go back that far, we must still abide by the plain meaning of the Fourteenth Amendment. The Fourteenth Amendment merely harmonized the Constitution with the preamble of the Declaration to ensure that freed slaves were not denied life, liberty, property rights, and equal access to the courts. As James Wilson, Chairman of the House Judiciary Committee who oversaw the drafting of the Civil Rights Act of 1866 and the Fourteenth Amendment, said at the time: “We are establishing no new right, declaring no new principle. It is not the object of this bill to establish new rights, but to protect and enforce those which already belong to every citizen.”
Sure, we did win one defensive victory this week when a separate panel of the Sixth Circuit issued a stay on a district judge’s order mandating more early voting in Ohio. But that was an even more radical practice of allowing people to register for the first and simultaneously vote early. Nobody should have struck down the law eliminating such a practice, yet the Republican-appointed district judge and one Democrat circuit judge believed Ohio’s law reversing this practice was unconstitutional. Winning one or two defensive victories in a few districts or circuits the face of so many devastating losses across the map on issues that we should never have to defend and for which agitators should never obtain standing in court — is no reason to hold back from declaring war back on the courts.
If Republicans can’t get minor cuts in early voting past a panel like this, there is no hope for ever winning in the courts. These are the very people we are promised would be appointed to judgeships under a Republican president, but under the current system, with years’ worth of corrupt precedent, convoluted rules of standing, and endless and aggressive lawsuits from the Left against every last common sense and legitimate power of a state, we will never roll back what Justice Alito refers to as “the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.”
Editor’s note: An earlier version of this piece erroneously referred to the 6th Circuit instead of the 7th Circuit, when referencing Monday’s decision to extend early voting in Wisconsin.
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Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.