220 – Federal Courts Interfering with State Elections

With all the accusations, law suits, and recriminations around this year’s election, most people seem to have missed one very important problem. Before the voting even started, the federal judiciary interfered with elections in several states. I’ll not only explain the problem and show examples, but I will tell you what the American people can do about it.

National Elections

To understand how badly the federal judiciary interfered with the election, you need to understand a fundamental point about the process. There is only one national election in this country, and in 2020, it hasn’t happened yet. The only national election is when the presidential electors meet in their respective states and vote for President and Vice-President.

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves;

U.S. Constitution, Amendment XII

Every other election is either a state or local election. Even elections for federal offices, members of the House of Representatives, Senators, and yes, presidential electors, are state elections, not federal ones.

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States,

U.S. Constitution, Article I, Section 2, Clause 1

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years;

U.S. Constitution, Amendment XVII

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:

U.S. Constitution Article II, Section 1, Clause 2

In fact, the only power the federal government has in the election process is the setting of Election Day and the day when the presidential electors cast their ballots. Congress does have the authority to alter state law regarding the times, places, and manner of holding elections for House and Senate seats, but they cannot regulate where Senators are chosen, nor can they regulate any part of the Presidential election except for the dates.

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

U.S. Constitution, Article I, Section 4, Clause 1

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, Clause 4

The Role of the Courts

The judicial power of the United States is limited to issues arising under the Constitution, federal law, or treaties, along with certain international and interstate controversies.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;…

U.S. Constitution, Article III, Section 2, Clause 1

That means the federal courts only have jurisdiction over election controversies that come under the Constitution and federal laws made pursuant to it. That’s limited to the day of the election and the right of citizens to vote regardless of their race, color, previous condition of servitude (Amendment XV), sex (Amendment XIX), age (Amendment XXVI), or the paying of taxes (Amendment XXIV),

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude–

U.S. Constitution, Amendment XV

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

U.S. Constitution, Amendment XIX

The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

U.S. Constitution, Amendment XXVI

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

U.S. Constitution, Amendment XXIV

Any other intervention in the right of a state to conduct their elections is a violation of the Constitution, the judge’s oath of office, and of good behavior.

Texas Alliance For Retired Americans v. Ruth Hughes

Plaintiffs renew their challenge of House Bill 25, a Texas election law which will eliminate straight-ticket voting, a century-old practice that allows Texan voters to cast their votes for all candidates of their preferred political party with the click of a single box at the top of their ballot.

Texas Alliance For Retired Americans v. Ruth Hughes Order

The people of Texas, through their legislators, decided to stop the practice of allowing straight-ticket voting. They did so legally, following the legislative process in their state’s Constitution. It’s not surprising that some in Texas would agree with this decision. Texas is a republic, where the people hire representatives to exercise their sovereign power, and where the will of the majority overrides the will of the minority, as long as it does not infringe on their rights. So the question for today is: Did Texas HB25 violate the rights of anyone in Texas?

In these extraordinary times, Plaintiffs call upon this Court to uphold the fundamental right to vote. This right, so necessary for our democracy to function and flourish, is guaranteed to all citizens regardless of race, color, ethnicity, gender, income, or political affiliation.

Texas Alliance For Retired Americans v. Ruth Hughes Order

Where to start? First, a person’s rights are not contingent on the times being extraordinary or not, and your rights neither increase nor diminish because of “extraordinary times”. Second, America is not a democracy, we are a republic, and each state is guaranteed a republican form of government by Article IV, Section 4 of the U.S. Constitution.

Plaintiffs seek to enjoin the State of Texas from implementing House Bill 25 and seek a declaration that this Bill places undue burdens on the rights of voters, contravenes Section 2 of the Voting Rights Act, and intentionally discriminates against the viewpoints of the Democratic Party (Dkt. No. 1).

Texas Alliance For Retired Americans v. Ruth Hughes Order

The plaintiff’s argument is blatantly absurd. The Voting Rights Act (1965) deals with the denying the right of a person to vote, not controlling how they vote.

No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.

Transcript of Voting Rights Act (1965)

What we have here is a minority group of voters in Texas who are trying to overturn a legitimately adopted Texas law, and an activist federal judge willing to help them.

Philip Randolph Institute of Ohio v Frank LaRose

In this case, I searched for the order from the District Court, but to no avail. So I am using the description in the order issued by the Sixth Circuit Court of Appeals in their stay.

Plaintiffs, a collection of non-partisan civil rights organizations and individual voters, filed this challenge on August 26, 2020, to Directive 2020-16, which concerns the placement of drop boxes for the collection of absentee voters’ ballots.

Philip Randolph Institute of Ohio v Frank LaRose Circuit Court Order

Directive 2020-16 limits the placement of ballot drop boxes to a location at each county’s board of elections office. As the Circuit Court noted, citizens of Ohio are not required to use a drop box, even for absentee voting. Therefore this directive does not impose a severe restriction on voting, much less a discriminatory restriction on the right to vote. This is the explanation the Circuit Court used to stay the District Court’s order pending appeal. While the opinion of the Circuit Court is a constitutionally sound win, it was only necessary because a District Court judge interfered with the election process in the State of Ohio in violation of the jurisdictional limitations placed on them by the U.S. Constitution.

Conclusion

As usual, many of the reports I heard of federal courts interfering with a state’s right to conduct elections were often overblown or, like the Ohio case I just mentioned, a higher federal court is staying the actions of a lower one. In either situation, I am concerned about the growing encroachment of the federal government, including the judiciary, on the power of the states to oversee their own elections. You may not like how another state conducts their election, and you may see it as impacting you when it comes to the election of the President. However, the Constitution left the power of conducting elections primarily in the hands of the states and their legislatures.

As the evidence of fraud grows, the confidence in the election diminishes. Removing control over the elections from the states and their citizens, does two things. First, it further diminishes the rule of law in America. If we are going to allow our representatives, our elected employees, to ignore the law to get the outcome we prefer, then we are no longer a nation of laws, but of men. Second, by federalizing every issue, including overseeing a state’s election, we drift further and further away from a union of states toward a democracy of fiefdoms. Why have a state if every controversy is a federal matter? We forget that the states created the federal government, not the other way around. We also forget that those same states limited the powers of the federal government.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

The Constitution only works when We the People force our elected employees to follow it. If the citizens of a state have hired representatives that will not follow the law, that’s their problem to resolve. Will there be consequences for the union as a whole? Yes. That is the risk you take when you unite with other states. As with any other compact, it is the parties to it that are responsible for holding each other accountable. Therefore, it’s the states that should hold each other accountable for following the compact, just as it’s the responsibility of the citizens of those states to hold them accountable as well. If the people of a state wish to live in a criminal empire, they merely need to proceed down the road we’ve been on for decades. If, however, we want our governments to be intelligent, brave, and pure, we must demand that those we hire to represent us act that way, or be considered unqualified for the office. As James A. Garfield said:

Now more than ever before, the people are responsible for the character of their Congress. If that body be ignorant, reckless and corrupt, it is because the people tolerate ignorance, recklessness and corruption. If it be intelligent, brave and pure, it is because the people demand these high qualities to represent them in the national legislature … If the next centennial does not find us a great nation…it will be because those who represent the enterprise, the culture, and the morality of the nation do not aid in controlling the political forces.

James A. Garfield, Speech at the Centennial celebration of America

We the People have allowed ourselves to be lulled into imbecility. We are universally ignorant of our Constitution and the limitations it places on governments. Too many of us have been subdued by the siren song of the media, both social and traditional. We have turned our backs on freedom in exchange for a government check or program. The actions of many during this recent election shows that we have become debauched in our manners. Is it any wonder that freedom and liberty are disappearing in America? If this continues, it will not be Russia or China that destroys this republic, we will do it to ourselves.

No people will tamely surrender their Liberties, nor can any be easily subdued, when knowledge is diffused and virtue is preserved. On the Contrary, when People are universally ignorant, and debauched in their Manners, they will sink under their own weight without the Aid of foreign Invaders.

Samuel Adams