By David Harsanyi
Thursday, April 09, 2020
I’m sorry, but you have no constitutional “right” to vote
by mail. You have no constitutional “right” to vote six days after an
election is over. Nor do you have any “right” to censor information related to
an election. Not even during a pandemic.
This week, the Supreme Court ruled that a federal court
was not empowered to overwrite Wisconsin’s election laws and force the state to
accept ballots without any postmark deadline nearly a week after the election.
Likewise, the Wisconsin Supreme Court ruled that Governor Tony Evers did not
have the authority to arbitrarily suspend in-person voting.
And as Timothy Sandefur, Vice President for Litigation at
the Goldwater Institute, points out, the Supreme Court decision notes that the
district court created “a subsequent order enjoining the public release of any
election results for six days after election day.”
By forcing Wisconsin to keep voting alive for nearly a
week after they were meant to close, the district court realized that late
voters would have information regarding election results, so it tried to shut
down legally mandated reporting requirements. Sandefur tells me that “enjoining
the truthful communication of legal information is a violation of the First
Amendment. A prior restraint, even! About election results! Which is one of the
most insane violations of the Constitution I’ve ever heard of.”
If these dictates had been allowed to stand, they would
have created insanely destructive precedents, taking elections out of the hands
of local legislatures. If we discard legal norms every time there’s a crisis,
we no longer have a nation of laws, but a country at the mercy of arbitrary
decrees, emotional appeals, and pliable courts.
Not that any of this concerned the usual suspects, who
began lamenting the alleged anti-democratic nature of Roberts Court. When will
the conservative wing abandon their partisanship and begin “compromising”
wondered a news piece in the Washington Post.
Liberal pundits, apparently unable differentiate between
partisan policy preferences and the rule of law, launched into their customary
hysterics, denouncing the Supreme Court for disenfranchised minorities and
putting people’s lives at risk.
The Supreme Court did nothing of the sort, as it notes:
The Court’s decision on the narrow
question before the Court should not be viewed as expressing an opinion on the
broader question of whether to hold the election, or whether other reforms or
modifications in election procedures in light of COVID–19 are appropriate. That
point cannot be stressed enough.
The Court doesn’t exist to fix your local government’s
incompetence or make life safer. It exists to uphold the Constitution.
None of this is to say that the situation in Wisconsin is
fair to voters, who had to risk standing in lines during a dangerous pandemic.
Many states have contingencies in place for emergencies. Wisconsin — while it
had plenty of time to pass new guidelines — does not. That’s a Wisconsin
problem, not a Supreme Court problem, not a “democracy” problem, and definitely
not a federal problem.
If Wisconsinites don’t like their laws, if they’re
disappointed in legislators, if they’re furious at the state’s high court, and
they’re bothered by the governor’s ineptitude, there will be plenty of future
elections to right those wrongs. In no version of a healthy “democracy,”
however, do we override existing laws, passed by previous elected officials,
through fiat.
But make no mistake, the Wisconsin case will be used in the
broader effort to federalize and centralize elections to create a more direct
democracy — even though such effort are antithetical to American governance.
Senator Elizabeth Warren has already proposed mandating
automatic and same-day voter registration, ending ID requirements, compelling
states to have 15 days of early voting, and forcing states to adopt voting by
mail, among other liberal pet projects. She wants the federal government to
bribe states with billions to adopt these standards. And she wants those
changes implemented by November.
She’s not alone. In “Phase 4” of the coronavirus rescue
package, Democratic leaders are reportedly including provisions that would
compel all states to offer voting by mail. Presidential hopeful Joe Biden also
supports such a mandate, because, he claims, “all the experts” say we should do
it.
Now, I don’t know what experts Biden is referencing, but
Publius, something of an authority on these matter, once wrote that it was a
no-brainer to condemn the suggestion that federal government should regulate
state elections as both “an unwarrantable transposition of power, and as a
premeditated engine for the destruction of the State Governments.”
As a practical matter, requiring states, all of which
have varied systems, technologies and infrastructures, to figure out how to
handle mail-in ballot systems in the midst of a pandemic is absurd. And not
merely because the obvious feasibility problems, but because there is no proper
time to debate the issue. Democrats have spent years weakening the integrity of
elections, but voting by mail opens up the process to real-world voter
intimidation, disenfranchisement, fraud — and a host of other problems.
Then again, people of goodwill can disagree over the
particulars of election policy. It’s far more critical to note that neither the
Senate, nor the House, nor the White House, nor federal courts have any
business compelling states to adopt uniform standards regarding mail in ballots
or IDs or voting machines, or much of anything else. A national mail vote is
meant to federalize the election, leaving smaller states to vagaries of a
national majority. It’s exactly the kind of situation the Constitution wanted us
to avoid.
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