by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
For more than six months, a coalition of organizations, lawyers, and ordinary citizens affiliated with the Democratic Party have been conducting a coordinated attack on state laws designed to prevent election fraud and ballot harvesting. To date they have filed more than 400 lawsuits asking state and federal courts to overturn or suspend such laws, including nine lawsuits in North Carolina. They filed multiple suits in almost every state because, even though most were likely to fail, they only needed one to succeed in order to get what they wanted, which is precisely what has happened in North Carolina.
The ostensible purpose of all those hundreds of lawsuits was to ensure that people could vote safely without exposing themselves to COVID-19 by appearing in person at crowded polling stations. They claimed the alternatives to in-person voting provide by most state’s election laws were so woefully deficient that they effectively were “disenfranchising” many would-be voters.
That claim rang particularly hollow in North Carolina. Compared with most states, North Carolina already had extremely flexible and generous voting rules that were well-suited to pandemic conditions. Those rules provided extended periods for early voting, allowed all voters to request and cast absentee ballots with no questions asked, and permitted election officials to count absentee ballots received up to three days after the election, far longer than in most states.
In response to the threat of COVID-19, moreover, the North Carolina General Assembly had enacted a number of temporary measures designed to make absentee voting even easier and safer. These measures included: reducing the absentee witness requirement from two witnesses to one; allowing voters to request absentee ballots online; providing absentee voters with a system for tracking their ballots; and allocating additional funding for the administration of both in-person and absentee voting. Those measures were approved by large bipartisan majorities in both houses of the state legislature in June and promptly signed into law by the governor.
Despite the fact that a majority of the Democrats in the General Assembly had approved those measures, and despite the fact that a Democratic governor had signed them into law, many Democrats were still unhappy. They wanted to eliminate the witness requirement completely rather than merely reduce the number of witnesses. They also wanted to eliminate the rules restricting the times and places for depositing absentee ballots in drop boxes at polling stations and the rule forbidding anyone other than a close relative from depositing absentee ballots on a voter’s behalf. And they wanted the receipt deadline for absentee ballots to be extended far beyond the three-day grace period provided under the law. The General Assembly, however, chose not to eliminate those and other statutory provisions designed to prevent fraud and abuse, which is why the Democrats filed their nine lawsuits attacking the law.
The plaintiffs in those suits won some minor, partial victories. However, by the end of September it was clear that the courts were not going to eliminate the witness requirement, suspend the anti-ballot harvesting provisions, or extend the receipt deadline, probably not at all, and certainly not in time to affect the election that was already well underway.
On September 22, therefore, the Democrat-affiliated lawyers who represented the Democrat-affiliated plaintiffs in one of those lawsuits negotiated a settlement with the Democratic State Attorney General and the Democratic appointees on the State Board of Education (SBE). The plaintiffs agreed to drop their suit, and, in exchange, the SBE issued a series of memos that effectively eliminated the witness requirement, suspended that anti–ballot harvesting measures, and extended the absentee ballot receipt deadline from November 6 to November 12.
The Republican leaders of General Assembly and various Republican-affiliated groups promptly challenged the legality of that settlement and requested a preliminary injunction blocking its implementation. On September 28, they filed two federal lawsuits, Moore v. Circosta and Wise v. Circosta (subsequently consolidated into one), in which they made two claims. They claimed that, by taking it upon itself to change the absentee voting rules that had been enacted by the state legislature, the SBE had violated Article I, Section 4 of U.S. Constitution, which states, “The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.” They also claimed that, by changing the rules after the election had already begun and after hundreds of thousands of ballots had already been completed and returned, the SBE had violated the Equal Protection Clause of the 14th Amendment, which requires that all persons be treated equally under the law and protects voters from attempts to dilute the value of their votes after they have been cast.
The consolidated cases were assigned to United States District Court Judge William L. Osteen. Judge Osteen was already dealing with another of the nine North Carolina cases, and, in the course of resolving that other suit, he had issued an injunction blocking the implementation of the SBE memo that eliminated the witness requirement, which had the effect of rendering that part of the Republican lawsuit moot. With regard to the rest, while Osteen found that the Republican plaintiffs would probably ultimately prevail on at least some of their claims, he nevertheless refused to grant their motion with respect to the rest of the rest of memos because he believed an obscure Supreme Court opinion from 2006 required him to do so.
Judge Osteen rendered his decision on Oct. 14. For reasons too complicated to go into here, the Republican plaintiffs accepted his decision with regard to the suspension of the anti–ballot harvesting measures, but they promptly appealed the extension of the receipt deadline. On Oct. 20, however, the United States Court of Appeals for the Fourth Circuit upheld Osteen’s decision. In a stinging dissent, three members of the Fourth Circuit urged the plaintiffs “to take this case up to the Supreme Court immediately. Not tomorrow. Not the next day. Now.” The plaintiffs followed that advice, but to no avail. On Wednesday, Oct. 28, the Supreme Court denied their request for an emergency injunction.
The Supreme Court’s ruling in Moore didn’t come as surprise. On Oct. 19, just nine days before that ruling, the Court had refused to impose a stay on the Pennsylvania Supreme Court’s decision to extend the absentee ballot receipt deadline from November 3, as required by statute, to November 6. Chief Justice John Roberts cast the decided vote that allowed Pennsylvania Supreme Court’s decision to stand. And even this past Monday, when the Court denied a request to reinstate a district court order extending Wisconsin’s receipt deadline from election day to November 9, in his concurrence Roberts made it clear that, while he agreed with the other conservatives that overturning a lower federal court’s decision in such a case was something the Supreme Court could and should do, overturning a decision by a state court was another matter altogether.
Nevertheless, while I wasn’t surprised by the Chief Justice’s decision to vote with the liberal wing and deny an injunction in Moore, I was disappointed, and I was even more disappointed that Justice Brett Kavanaugh voted against an injunction as well. In the Wisconsin case, he had joined with Justice Neil Gorsuch in a concurrence that said,
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. [Emphasis added.]
That statement suggests that the Moore plaintiffs have at least a facially valid constitutional claim. And in a separate concurrence, Kavanagh noted that, in setting receipt deadlines for absentee ballots “states want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.”
He went on to emphasize that point with a quote from a recent law review article:
[L]ate-arriving ballots open up one of the greatest risks of what might, in our era of hyperpolarized political parties and existential politics, destabilize the election result. If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode. … [The] longer after Election Day any significant changes in vote totals take place, the greater the risk that the losing side will cry that the election has been stolen.
Kavanaugh’s use of that quotation was criticized by some legal commentators because, elsewhere in the article, the author concludes that extending the receipt deadline for absentee ballots may nevertheless make sense in a time of pandemic, but I don’t think much of that criticism. While it’s true the article’s author accepts that limited extensions might make sense during a pandemic, he also says, “To preempt this risk, we want to encourage absentee ballots to arrive earlier rather than later; we want states to be ready to process these ballots as close to election night as possible; and we want to build in enough time on the back end to deal properly with the likely volume of these ballots.”
For his part, Kavanaugh doesn’t deny that limited receipt extensions might be a good idea in some cases. His point is simply that there are serious risks associated with extending the receipt deadline beyond election day, and the more that period is extended, the greater those risk will be.
In any case, regardless of what the author of the cited article has to say, the point Kavanaugh was making is obviously correct. If the candidate who appears to have lost on election day eventually wins because of late arriving ballots, the public is going to suspect fraud, and with good reason. Late arriving ballots have always been a hallmark of election fraud.
It should also be noted that Kavanaugh’s point doesn’t just apply to receipt deadline extensions; it applies to any change that undermines public confidence in the outcome of an election. The Democrats have filed hundreds of lawsuits attacking laws designed to prevent election fraud and ballot harvesting, presumably because they think getting rid of those protections improves their chances of winning. By doing so, however, they are playing with fire. If the American people lose faith in the integrity of our elections, if they start to feel they can no longer count on a peaceful transfer of power from one administration to another, the consequences could be dire!
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