The United States Supreme Court thinks it’s not the concern of federal judges, state judges, governors, or other state officials to make rules governing elections. The constitution only empowers state legislatures to make those rules.
Why this is controversial is a mystery. But three liberal justices believe that because of the coronavirus crisis, the rulebook should be thrown out the window and election rules should be whatever liberal voting advocacy groups believe they should be.
We held a national election in the middle of a civil war without changing the rules. My guess is we can hold a national election during a health emergency without federal and state judges making election laws.
“The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” Justice Neil Gorsuch wrote in a concurring opinion.
In dissent, Justice Elena Kagan gave that notion short shrift, noting Wisconsin’s Republican-run Legislature hasn’t met since April. Extending the deadline for absentee ballots should have been allowed, she wrote.
“On the scales of both constitutional justice and electoral accuracy, protecting the right to vote in a health crisis outweighs conforming to a deadline created in safer days,” Kagan wrote.
At issue was the Wisconsin law requiring ballots be returned no later than Election Day by the time the polls close. Liberals wanted to give voters six days extra to get the votes in. They argued that because of the pandemic and “slow mail,” extra time was needed.
The post office recently confirmed there are no problems with election mail. The coronavirus has nothing to do with people delaying mailing or dropping off their votes until it’s too late. Nor will it stop an estimated 60 million people from showing up at the polls in person. The “extra” time is unnecessary, slows the vote count to a crawl, and is just one more opportunity to fiddle with the ballots.
Justice Gorsuch was on fire in his ruling.
“Last-minute changes to longstanding election rules risk other problems too, inviting confusion and chaos and eroding public confidence in electoral outcomes,” he wrote. “No one doubts that conducting a national election amid a pandemic poses serious challenges. But none of that means individual judges may improvise with their own election rules in place of those the people’s representatives have adopted.”
Constitution now. Constitution forever. This isn’t “originalism” or a “strict constructionist” view of the matter. It is a reading of the plain language of the law. Is there any doubt what Democrats would do to the court if they are allowed to pack it with revolutionaries? The Constitution will cease to mean what it actually says and be “reinterpreted” to mean what liberal jurisprudence suggests it might mean, or worse, what it should mean.
Welcome to the court, Amy Coney Barrett. You are going to have your hands full.