As most states roll over and allow federal courts to manifestly usurp their powers, a handful of North Carolina counties are showing leadership by refusing to follow the Fourth Circuit’s unconstitutional commandment that they allow 17 days of early voting instead of “only” 10 days. Good for those 23 counties. If federal courts are allowed to mandate specific days and hours of early voting, something which never existed in most states until recently, why even have state legislatures?
When Republicans took control of the state government in North Carolina, they passed common sense election laws restoring the methods and procedures of elections to their traditional norms. Among other measures designed to limit voter fraud, including the requirement of a photo ID to vote, the law cut back early voting from 17 days to 10 days. At the same time, the law boosted the number of hours the early voting centers were to remain open on early voting days so that the total number of hours early voting was offered was essentially the same as in the 2012 election. Remember, a state legislature has the right to not offer any early voting, as is still the case in some states.
In comes the NAACP and the racial ambulance chasers, accusing the law of being racist because anything less than the number of days Democrats want for early voting is invidious, racist, and unconstitutional. The state Supreme Court and a federal district judge upheld the law, but the Fourth Circuit declared most of it unconstitutional and in violation of the Voting Rights Act because, in their estimation, it was passed with racial intent.
With regards to early voting, the Fourth Circuit suggested that by getting rid of early voting on Sunday, a day that requires county officials to work instead of spending time with their families, would hurt the get-out-the-vote efforts of black churches.
These are policy disputes that must be worked out in a state legislature.
Think about this for a moment: to begin with, federal courts have no jurisdiction over the methods and procedures of elections, especially when Congress hasn’t stepped in and the state courts upheld the law. Early voting itself is against the spirit of the Constitution, and there is certainly no requirement to have any number of days for early voting. But to invoke the South’s history of legitimate voter discrimination in order to mandate 17 days of early voting is downright reprehensible. Essentially, Democrats can concoct any revolutionary scheme for voting. As long as they demonstrate that blacks have a higher turnout as a result of the law, Republicans can never reverse it. Thus, if they win this election and change the law to allow early voting for five Sundays prior to the election, Republicans couldn’t roll it back to four Sundays, in the view of the courts.
Imagine if gun clubs would have community shootouts on Saturday and then offer to bus in their predominantly Republican members to early voting stations on that day. Would Democrats now be constitutionally required to keep early voting on Saturday because eliminating it would be invidious to gun owners?
These are policy disputes that must be worked out in a state legislature. The state of North Carolina already exercised its plenary power to determine the days for early voting in this election. Local officials tell me that county clerks have done a lot of work in the state to inform those in homeless shelters and nursing homes about the new times for early voting, pursuant to current law. For a federal court to mandate that county clerks change their voting times in middle of an election rises to the degree of a usurpation that Alexander Hamilton said in Federalist #33 should be ignored by the states.
Besides, let’s acknowledge the fact that courts do not have legislative powers to order policy changes. They can merely grant relief to a plaintiff with legitimate standing to assert that a state took negative action against him, such as imprisonment or fines. A federal court simply cannot order that counties hire election workers to come in on a Sunday two weeks before election day. The Constitution states (Art. II §1 cl. 4): “The Congress may determine the Time of ch[oo]sing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” In 1845, Congress designated that day as “the first Tuesday after the first Monday in November.” It is that day, and only that day on which states and counties required to hire election workers for the purpose of administering ballots. In fact, one can make the case that to have early voting at all and on multiple days – varying by state – long before the congressionally-approved Election Day is manifestly unconstitutional, at least for federal elections.
When federal courts are now saying the Constitution is unconstitutional and the Democrat racial agenda, election maps, and methods of electioneering are mandated by their Constitution, it is time to call BS on their power-grab. We have tolerated the illegitimacy of judicial tyranny for way too long. As Ed Whelan observes today, the courts have gotten so bad that one district judge mandated the polls be kept open longer in four Ohio counties without a formal plaintiff submitting a complaint! Courts are now super legislatures that illegally make policy. Having the ACLU or NAACP draw up some straw men plaintiffs to demand a policy change that is not a fundamental right is no different than having no plaintiff at all.
It’s time to put the federal judiciary in its place. Thankfully, these North Carolina counties are showing how it’s done.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.