Never before in the history of the country has the election process system been under greater attack. In the wake of the Coronavirus pandemic, heavily funded organizations and lawyers with fat trust deposits have been seeking to undo how we elect the President, Congress and state officials.
Like the rioters in the streets of American cities, they are taking advantage of a crisis to try to fundamentally transform American institutions.
They are seeking to throw out state laws designed to protect the integrity of American elections.
The first target of the election transformation was Congress. Soon after the pandemic reached our shores, House Democrats passed emergency legislation that would have federalized election process rules.
The Constitution decentralizes how we run elections because decentralization promotes individual liberty. When elections are decentralized, no single malevolent actor can manipulate or control the outcome.
During both the Bush and Obama administrations, I worked in the Voting Section at the United States Department of Justice. I witnessed firsthand how federal bureaucrats could manipulate, coerce and threaten state officials who did not conform to the bureaucrat’s sensibilities about how elections should be run.
Naturally the federal government has a role in ensuring that elections are conducted in a way that complies with federal laws and the Constitution. For example, the 15th Amendment and the Voting Rights Act of 1965 do not allow discrimination on the basis of race.
But apart from these limited federal carve-outs, the Constitution vests states with the power to run their own elections and set the qualifications to vote.
The bill that passed the House would have mandated automatic vote by mail in every state. It would have mandated same-day voter registration as well as weeks of early voting. It would have banished voter photo identification laws. It would have legalized vote harvesting in every state. Other proposals in Congress would have allowed mail ballots to be counted even if they were not postmarked by election day.
What the bills would actually do is foment chaos. The election would not be decided on election day. Millions of mail ballots would keep appearing, keep rolling in, until there were enough votes to make the difference. If there was a dispute, lawyers would steal the show, subjecting America to weeks of post-election court contests to force a particular outcome.
Making all of this even worse are the hundreds of millions of dollars that leftist foundations dedicate to this process fight. There is money for media outlets to publish stories that voter fraud is a myth. They even lend struggling newspapers foundation-funded “reporters” to work for free, as long as they publish stories saying voter fraud is a myth.
Of course, there is money for lawyers. When the House election transformation bill failed in the Senate– largely thanks to Majority Leader McConnell and Appropriations Chairman Richard Shelby (R-AL) — those trying to transform the elections rushed to the courts. The bill would have nationalized vote by mail, banned voter ID, and mandated that every state offer a month of early voting and allow same-day registration.
Across the country there are dozens of lawsuits trying to force states to abandon state election integrity procedures. My organization has been involved in a number of them, and it is quite an eye-opener. In Virginia, for example, the League of Women Voters sued the state to force the end of the witness requirement on absentee ballots. They argued that finding a witness would be a violation of federal voting rights.
Unbelievably, Virginia Attorney General Mark Herring capitulated and surrendered. The purported adversaries decided to enter into a collusive consent decree, tossing out the law.
Remember, the duly elected legislature of Virginia — both the House and Senate — passed a witness requirement and an elected governor signed the bill. The agreement between the plaintiffs and defendants in the case of League of Women Voters of Virginia vs. Virginia State Board of Elections erased the democratic will of the people of Virginia manifested in law.
This story is repeating itself all over the United States. Lawsuit after lawsuit is being filed to cancel state election integrity laws. One case in Texas actually claims the stamp you put on your absentee ballot is the same as a Jim Crow era poll tax.
All of this diminishes the real fight for civil rights that occurred a half century ago.
Lawyers are trying to accomplish in courts what could not be accomplished in Congress. Judges are being used as substitutes for the will of the people. People who seemingly would like to be able to manipulate election results are forum-shopping for the most sympathetic courts. And in some places, the plaintiffs and defendants are in agreement that state election laws should be struck down without contested litigation. The case is filed, and the states surrender.
When I attended law school, this is not what they taught. Laws, at least we were told, represented the will of the people. They were to be respected. Lawyers, particularly lawyers for a state attorney general, are under an ethical obligation to defend a law, even if they did not agree with it.
Yet in one hearing I attended in the Virginia litigation, the federal judge asked the Virginia Attorney General if they ever intended to file any pleading in court to contest the case. The lawyer hemmed and hawed. The answer should have been yes. Instead it was a successful attempt to obscure the answer.
Virginia’s only response was a white flag.
So now the same people who support the lawsuits around the country are still trying to move elections to an all-mail election. This would put the fate of the election into the hands of the same people who regularly deliver to you and your neighbor’s mail.
Vote by mail might sound good, until you look at the data. The federal election assistance commission keeps tabs. Their data show that 28 million ballots mailed since 2012 simply vanished. They were sent out, but never came back and were counted. Some say they are in landfills, others figure they are in file cabinets. The truth is, we do not know. All we know is that the mail ballots never accomplished what they were intended to accomplish.
It gets worse. Hundreds of thousands came back but had defects that prevented them from being counted. The voters who sent these ballots probably do not even know that their ballot was not counted after they sent it back.
Mail voting also destroys the transparency of our elections. Observers from each side are unable to watch the process. Mail ballots are uniquely vulnerable to fraud because they are voted behind closed doors where third parties regularly attempt to influence the process. Senior citizens already enjoy rights to request an absentee ballot in every state.
It surprises people to learn that in the middle of an Ebola epidemic in 2014, Liberia conducted an in-person national election. Ebola had a fatality rate of 46%, yet people still came into polling places and voted in person. The solutions were simple — sanitization protocols, distancing, disinfectant on surfaces.
Putting the Presidency into the hands of the United States Postal Service would be a serious mistake. Some factions, however, do not care about mistakes. They care more about transforming an election system so they can transform a nation.