In what may be a preview of the 2020 election, a U.S. District Judge has inserted herself into the Georgia election process. In this convoluted and painful decision, we have a federal judge ordering the state of Georgia to violate federal law and the Constitution of the United States.
I found this AP article about a judge who ordered Georgia to extend their absentee ballot deadline. My first reaction was suspicion of the constitutionality of such an action, so I did a little research. It took some work, but I finally tracked down a copy of the judges order and dug through the mess to get at the pertinent facts.
There’s an old adage, if you can’t dazzle them with your brilliance, baffle them with a “Barnyard Substance”. The New Georgia Project filed suit on behalf of three registered Georgia voters seeking an injunction against the enforcement of five parts of Georgia’s absentee ballot law, claiming they not only violate several amendments to the Constitution, but U.S. law as well. While most of the counts against the five statues seemed ridiculous and were dismissed, one, the deadline for the receipt of absentee ballots, was enjoined by the judge. That is what I will be focusing on here.
Ballot Deadlines
Georgia law, (O.C.G.A. § 21-2-386(a)(1)(F)) requires that absentee ballots be received by 7:00PM Election Day to be counted. Plaintiffs complained that this imposed a severe burden on their right to vote and deprived them of their liberty without “adequate procedural safeguards”. While this was not a problem in plaintiffs’ eyes normally, they claim the COVID-19 reaction makes it so. Let’s start, as the court did, with the severity of the burden that is placed on the absentee voter.
Severity of Burden
Plaintiffs noted that a record number of absentee ballots were requested for the Georgia primary, and they expect even more for the general election in November. One plaintiff received her absentee ballot the day before the election, making it effectively impossible for her to get her vote returned in time to be counted. The court noted that there were over 3,500 ballots received after Election Day in 2018, and over 7,000 were received after the deadline for the 2020 primary. The plaintiffs claim this was due to Georgia’s poor administration of absentee ballots, along with the policies they were challenging. What was not mentioned in the court’s order was the postmarks on those late ballots. Were these ballots mailed with sufficient time to reasonably expect them to be counted, or were they mailed at the last minute, or even late? Without that information, the courts point has no context to judge it by. The judge assumes so in her decision:
For example, in 2018, at least 3,045 of the 3,581 absentee ballots arrived within seven (7) days of Election Day, implying that many were mailed either before or on Election Day.
The New Georgia Project v. Brad Raffensperger Order
The court also noted that a Wisconsin district court ordered an extension to that state’s absentee ballot deadline based on similar circumstances. However, that decision was partially stayed by the United States Supreme Court, at least in part because the Wisconsin court did not put a postmark deadline in their order. Based on this, and other cases involving uniformed services and overseas voters, courts have found that states that did not provide sufficient time to return absentee ballots imposed a severe burden on their right to vote.
The state claimed that a ballot, postmarked by deadline or an extension, will “frustrate the State’s interests in conducting an efficient election, maintaining order, quickly certifying election results, and preventing voter fraud.” What was not mentioned, either by the state or the court, was the constitutional deadline required for appointing electors in a Presidential election.
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
U.S. Constitution, Article II, Section 1
The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.
3 USC §1
The Constitution grants to Congress the authority to determine when Electors must be chosen, which Congress has set as the Tuesday after the first Monday in November. What we call Election Day. For the state to intentionally delay their appointment of electors not only violates federal law, but the Constitution as well. In the opinion of this judge, the state’s interest in complying with federal law and the U.S. Constitution does not outweigh the burden the deadline places on absentee voters.
For these reasons, as applied to Plaintiffs for the upcoming November 2020 general election, the Court concludes the State’s asserted interests do not justify or outweigh the severe burden imposed on Plaintiffs by the Receipt Deadline. As such, Plaintiffs show a substantial likelihood of success, satisfying the first of the preliminary injunction factors. …
But the Court also finds that any additional procedures impose a minimal burden on Defendants, because they already have an extended deadline for Uniformed Overseas Citizens Absentee Voting Act voters.
The New Georgia Project v. Brad Raffensperger Order
The court pointed out that the federal Uniformed Overseas Citizens Absentee Voting Act already extends the deadline for accepting absentee ballots, but isn’t that using one problematic law to force a state to insure another?
Plaintiffs will be forever harmed if they are unconstitutionally deprived of their right to vote. See Martin, 341 F. Supp. 3d at 1340. Defendants, on the other hand, argue that changing the deadline this close to the election will be burdensome on election officials, disrupt the State’s statutory scheme for certifying elections, and undermine the integrity of the election process.
The New Georgia Project v. Brad Raffensperger Order
I do agree with the court here. The harm done to the plaintiffs, if they are deprived, far outweighs the stated concerns of the state, if not those of the Constitution. My real question then becomes: What is the best remedy?
The First Amendment Question
It is well-settled that an infringement on the fundamental right to vote amounts in an irreparable injury. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion) (The “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”). Thus, when a plaintiff has alleged her fundamental right to vote has been infringed, irreparable injury is generally presumed.
The New Georgia Project v. Brad Raffensperger Order
I’m not sure how both the plaintiffs and the court finds a right to vote in the First Amendment. If voting is considered speech, it’s not really petitioning the government for a redress of a grievance. Therefore, since this was done by the Legislature of the State of Georgia and not Congress, it cannot be a First Amendment violation. I agree, the right to vote in this country is fundamental, and should be protected. I’m just not sure where they find that in the First Amendment. Then again, I’ve come to expect courts to ignore the first five words of the amendment when they find them inconvenient.
Plaintiffs’ proposed remedy—extending the deadline for receiving absentee ballots—would be a valuable measure to address the risk of absentee voter disenfranchisement. …
Extending the deadline would ensure that voters who receive their ballots shortly before Election Day are able to mail their ballots without fear that their vote will not count.
The New Georgia Project v. Brad Raffensperger Order
While the plaintiff’s proposed remedy may address the risk of absentee voter disenfranchisement, it does so by forcing Georgia to violate federal law and the U.S. Constitution by not appointing their presidential electors by the required deadline. A quick search of the U.S. Constitution shows only that people have the right to vote, not to do so by mail. I agree that absentee voting should be allowed, but that the states should be required to do so in a manner that maintains the integrity of their officers’ oaths to support the Constitutions of both their state and the United States.
The Remedy
Here, Plaintiffs request the Court extend the absentee ballot receipt deadline by five (5) business days. [Doc. 57-1]. However, the Court declines to grant Plaintiffs’ specific request and instead directs that Defendants accept as otherwise valid, absentee ballots from qualified voters that are postmarked by Election Day and arrive at their respective county’s office within three (3) business days after Election Day.
The New Georgia Project v. Brad Raffensperger Order
In their attempt to “split the baby”, the court has ordered that Georgia accept valid absentee ballots that are postmarked by Election Day and received within three (3) business days after the election. As a compromise between the position of the plaintiffs and the State of Georgia, this seems to be a pretty fair decision. What bothers me is the fact that the entire case appears to be a violation of the U.S. Constitution and a dangerous portent of what will happen in November.
Conclusion
Why does this case bother me so? First, we have to understand that there is no such thing in this country as a federal election. When there are elections for federal offices, all elections happen at the state level, and are therefore controlled by state law. With the exception of insuring that people are not denied the right to vote based on on their age, (14th and 26th Amendments), race, color, previous servitude (15th Amendment), sex (19th Amendment), or failure to pay taxes (24th Amendment), the federal government has no authority to meddle in these elections. Therefore, a federal court has no authority to order any state to modify its election process except to insure the rights listed above. Personally, I would prefer that a state’s legislature move up the date that they must legally send out absentee ballots to make sure that those voters have sufficient time to return them by Election Day. Either that, or Congress should amend 3 USC §1 to allow time for absentee ballots postmarked on Election Day to be counted before the date that states must appoint their presidential electors.
What really concerns me is the foreboding preview this case represents. Imagine different courts all across the country telling states what ballots they do and do not have to count. Imagine the fights on the floor of Congress January 6th, as Representatives and Senators from the different states challenge the vote counts based on the court demanded method of counting absentee ballots or, even worse, who the electors in that state voted for. This would not be something new. Did you realize that during the counting of the electoral votes on January 6th, 2017, many members of the House of Representatives objected to the votes of certain electors? Would you be surprised that the only electors that were challenged were those who voted for Mr. Trump? Why did the American people not hear about this? Partially because what passes for the news media in America today is a joke, and partially because those who wrote 3 USC §15 insured that one person could not disrupt the process of counting the votes.
Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received.
3 USC §15
While members of the House, which was controlled by a majority from the Democratic Party, objected without a countersigned objection from a member of the Senate, the objection could not be received by the President of the Senate.
So, what are the American people to do when the courts insert themselves into the election process? It’s one thing for lawyers and politicians to file suit; it’s quite another for federal judges to allow themselves to be inserted into the process in violation not only of the separation of powers within the federal government, but the right of the states to hold their elections in a manner chosen by their state’s Legislature.
Sadly, I foresee a potential coup d’etat this November. Have you asked yourself what your representatives will do in your name and the name of your state? Will your representatives attempt to overturn an election to get the outcome they want? Will their associates attempt to illegally bring the federal courts into the process to take control? What will you do about it? Will you support those in your state government who stand up to these revolutionaries? Will you help put down such an insurrection? And what about those who will riot and destroy if they don’t get their way? Are you prepared to defend yourself and your family, along with their rights? Will you demand that all parts of our governments do so by our consent, not that of some political party or faction? While we should all pray for the best, we should also prepare for the worst. If recent events have taught us anything, it should be that there are those who will not only use the levers of power to take control of you, your business, and your family, but others are more than willing to use violence and intimidation to get their way. Are you willing to stand your ground, or are you merely a sunshine patriot? Because the country that you leave to your children will not only be decided by this election, but by our willingness to stand against those who wish to overthrow the sovereignty of the American people.
These are the times that try men’s souls; the summer soldier and the sunshine patriot will, in this crisis, shrink from the service of his country; but he that stands it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph.
The American Crisis – Thomas Paine
