John Locke Update / Research Brief

Will Josh Stein oppose the Texas election lawsuit?

posted on in Civil Society, Law & Regulation, Legal Update
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The state of Texas filed a lawsuit in the U.S. Supreme Court this week against four other states that it says violated the U.S. Constitution in their handling of the recent election. Each state, Texas says in their suit, bypassed their legislature when they designed election procedures contrary to state law, thereby violating the Constitution.

Our own governor and attorney general agreed to a settlement that also provided for election procedures contrary to North Carolina law, thereby also violating the Constitution. Will NC’s attorney general, Josh Stein, defend his actions by intervening?

In the runup to the November election, several states took various actions to change their election procedures. These efforts were supposedly because of a need to accommodate voters in the face of the COVID pandemic, or that current voting procedures were racist, or both.

Indeed, Eric Holder, the controversial former Obama administration attorney general, led one group that worked to weaken election protection provisions around the country.

At the heart of many of the concerns raised by these groups are the provisions that govern voting by mail. Voting by mail really takes two different forms. The first, and the one most voters are aware of, is absentee voting. The second is mail-in voting.

Historically, absentee voting provided citizens who were unable to be in their home state during an election a mechanism whereby they could vote. The most common class of voters that took advantage of absentee ballots were members of the military who were stationed outside their states.

Voting protections weakened, but not by state legislatures

For many years absentee ballots were provided only for voters with a valid excuse for needing one. In addition, when an absentee ballot was allowed, a number of procedural steps were provided to protect the ballot from being used by someone other than the voter. Those procedural steps were the focus of Democrat actions in this year’s election.

The procedure for absentee voting is typically initiated by the voter through a request form sent to the election board. That request form is signed by the voter. Upon receipt of the request, the election board compares the signature with the signature the voter used when he or she registered to vote. Upon determining the signatures to be the same, the election board sends out an absentee ballot.

The voter fills out the ballot, secures it into an envelope provided by the elections board, places the envelope into another envelope and signs the outside of that envelope. That signature also provides the election board a means of verifying the voter. In most states that envelope must also be signed by one or more witnesses. That signed envelope is then placed in a third envelope to mail to the elections board.

The mailing of the ballot is also prescribed as it must be postmarked by a certain date, typically the day of the election, and it must arrive within a certain number of days at the board of elections (often a few days later than the deadline for the postmark).

Other protective measures are typically also in states’ election laws, including the means whereby absentee ballots can be returned in person.

A power reserved exclusively to state legislatures by the U.S. Constitution

What is important about the laws that prescribe the process for voting, and therefore ultimately decide how the electors from a state will vote, is that the U.S. Constitution reserves them exclusively for the state’s legislature under the “Electors Clause” of the U.S. Constitution:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
— The Constitution of the United States, Article II, Section 1 (emphasis added)

Here, in other words, if the procedure for absentee ballots described above is to be changed, only the state legislature can do it under the U.S. Constitution. That did not happen in the states named in the Texas lawsuit — Michigan, Pennsylvania, Georgia, and Wisconsin.

In some cases the election board (under the executive branch) changed the procedures, and in other cases they were changed as the result of a settlement of a lawsuit (under the judiciary branch) brought by a third-party group. Neither method, however, qualifies under the Electors Clause.

Since NC also weakened voting protections outside of the Constitution, will our attorney general defend it?

North Carolina similarly changed its election laws in a procedure known as “sue and settle.” It was particularly suspect as the two parties were well known to each other. It is described here.

The ultimate result of that process was that a number of voting protections were weakened. They are listed here and here.

The Supreme Court has decided to hear the Texas case, while a number of other states have decided to join with Texas in the action. The defendant states — Michigan, Pennsylvania, Georgia, and Wisconsin — will need to defend their actions. They will need to explain why they changed the election laws without following the Constitution. Their actions were the same as North Carolina’s.

That being the case, will NC’s attorney general, Josh Stein, and Gov. Roy Cooper join the defendant states of Michigan, Pennsylvania, Georgia, and Wisconsin in defending the same position that North Carolina took?

Dr. Donald van der Vaart earned a B.S. in Chemistry from UNC Chapel Hill, an M.S. in Chemical Engineering from N. C. State University, a Ph.D. in Chemical Engineering from Cambridge University and a J.D. from N. C. Central University. ...

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