Judges put election trust at risk

Throughout the 2016 campaign, Donald Trump raised questions about the legitimacy of the outcome, saying that the election had been rigged against him.

In this election, Trump has also beat a steady drum questioning the legitimacy of the outcome, claiming that there will be voter fraud with mail ballots. And he has refused to say that he will participate in a peaceful transition of power if he loses.

These allegations have been grossly irresponsible. There have been insufficient grounds to doubt the fairness of the conduct of the elections and the honesty of the outcome. An acceptance of the outcome and a peaceful transition are essential elements of a functioning democracy. Recklessly raising doubts about them is a significant part of what makes Trump so disturbing as a political leader.

However, by changing the rules by which the elections in states across the country are conducted at the last minute, judges are creating grounds upon which, in a particular set of circumstances, there are grounds to question the validity of the election outcome. In its own way, this is as disturbing as Trump’s narcissistic proclamations that the only way he can lose is if the other side cheats.

In our system of federalism, setting election rules is up to the various state legislatures. We don’t have one national election. We have 50 state elections. And they are conducted differently.

There are different deadlines for when people have to register to be able to vote. Different periods of time in which in-person voting is allowed. Different abilities and timetables to vote by mail. Different deadlines about when a mail ballot has to be received in order to be counted.

With COVID-19 making in-person voting and electioneering riskier, there is a valid argument to be made that the rules should be evaluated for possible modifications. And some state legislatures have made some changes.

But COVID-19 doesn’t change who should be making those determinations. There is nothing about COVID-19 that transfers responsibility to set election rules from state legislatures to judges.

Yet judges throughout the country are changing the rules for the conduct of this election in ways that contravene the rules established by the state legislatures. This is being done mostly by federal judges, but some state judges are usurping well.

Judges are changing the rules about when people have to register to be eligible to vote, who can vote by mail, who can collect mail ballots, and when ballots have to be received to be counted.

Judges have changed the election rules in several battleground states, including Pennsylvania, Michigan and Wisconsin.

And Arizona. Just this week, a federal judge vacated the statutory deadline for registering to vote for this election and substituted his own. Earlier, a federal judge said the state, contrary to its own rules, had to allow those returning a mail ballot without the required signature a chance to cure that for a period of time after the election. The 9th Circuit did stay that one.

Arizona law requires that mail ballots be received by election day to be counted. A federal judge did reject a lawsuit asking that be waived for those residing on the Navajo reservation. But judges across the country are vacating state laws about when ballots have to be received to be counted and substituting their own. And the judge-invented deadlines aren’t consistent.

As a general rule, the U.S. Supreme Court frowns on lower court decisions changing election rules, particularly when they occur just before an election. Last week, the high court accepted a

legislative

authority

as case in which the 9th Circuit struck down Arizona’s law banning ballot harvesting, the dangerous practice of allowing political activists to take custody of large numbers of ballots. By accepting the case, the court kept Arizona’s ban in place for this election.

But lower court judges all over the country are ordering last-minute changes in election rules. It is sort of a legal pandemic. It is uncertain whether the high court can, or will, squash all of them.

The problem of these judge-invented new election rules delaying the count and perhaps putting the country through an extended period of not knowing the outcome has been widely discussed. That, in itself, will undermine confidence in, and acceptance of, the results.

But there is a far more explosive possibility. Unless the Supreme Court clears the field, there will be a certain number of voters whose ballots are counted under the judge-invented rules whose votes would not have been counted under the rules established by the various state legislatures.

If those voters happen to determine the outcome, there will be a crisis in confidence in American democracy far beyond anything Trump’s irresponsible bombast could produce.

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