Fraud represents only one aspect of concern over the results from last week’s election. Of equal import when judging the legitimacy of the next president of the United States is whether states complied with the election rules established by their legislatures. These are not questions of mere “technical errors,” but raise significant constitutional concerns.
On Wednesday, Jim Geraghty of National Review tweeted his “Morning Jolt” summary of post-election lawsuits. “The Trump campaign,” Geraghty stressed, “conceded in oral arguments they were not contending fraud or improper influence, merely technical errors,” he wrote of a recent election case. Geraghty’s article, linked in his tweet, continued: “It is one thing to fume on Twitter that there is a sinister effort to steal an election; it is another thing to assert that sweeping claim in a court of law, before a judge, under penalty of perjury and/or disbarment.”
Not to pick on Geraghty, whom I respect immensely, but he is conflating two separate issues: fraud and violations of the election code. Those are two distinct problems, yet there has been little analysis of the latter, which over the next several weeks might prove more significant.
There are multiple allegations of fraud, such as the middle-of-the-night arrival of unsecured ballots in Detroit or the dead man voting in Nevada. Then there’s the even more devastating suggestion that votes for Donald Trump were swapped to Joe Biden via vulnerable computer systems. Frankly, this idea strikes me as unbelievable, but then again, so did the idea that the FBI would obtain illegal secret court warrants to spy on the Trump campaign, and we know how that turned out.
Election Code Violations Might as Well Be ‘Fraud’
Violations of the election code, however, are a different matter, and unfortunately, sometimes the public views election officials’ bending of the rules as a harmless ignoring of technicalities. As the attorney in the Montgomery County Board of Elections case noted after “conceding” he was not alleging fraud: “The election code is technical.”
That makes technical violations constitutionally significant because Article II, Section 1, Clause 2 grants state legislatures the ultimate authority to appoint the electors who choose the president: “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.”
In Bush v. Gore, former Supreme Court Justice William Rehnquist stressed the significance of this constitutional provision in a concurrence joined by Justice Clarence Thomas and former Justice Antonin Scalia. As Rehnquist wrote, that clause “convey[s] the broadest power of determination” and “leaves it to the legislature exclusively to define the method” of appointment of electors. Furthermore, “a significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.”
The three concurring justices in Bush v. Gore concluded that the Florida Supreme Court’s order directing election officials to count improperly marked ballots was a “significant departure from the legislative scheme,” and “in a Presidential election the clearly expressed intent of the legislature must prevail.” Accordingly, those justices would have declared the Florida recount unconstitutional under Article 2, Section 1, Clause 2.
While the concurrence in Bush v. Gore failed to garner support by a majority of the justices, the Supreme Court’s composition has changed dramatically since then, and the reasoning of this concurrence provides a strong basis to view deviations from the technicalities of the election code as unconstitutional. As Rehnquist stressed, “[I]n a Presidential election the clearly expressed intent of the legislature must prevail.”
So, if the legislative branch mandates voter signatures, or verification of signatures, or internal secrecy sleeves, or counting only in the presences of poll-watchers from each party, it is no answer to say it is a technicality and not fraud at issue. The state legislatures, through the election code, define the validity of votes, and allowing state officials or courts to read those provisions out of the law raises serious questions under Article 2 of the Constitution.
Ignoring the Election Code Denies Equal Protection
Allowing state officials to fudge on the mandates of the election code raises a second significant constitutional issue, this one under the Equal Protection Clause, which served as the basis for the majority opinion in Bush v. Gore. The majority in Bush v. Gore held that the varying standards violated the Equal Protection Clause of the Constitution, reasoning: “The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”
When state officials ignore the technicalities of the election code, however, it virtually guarantees voters will be denied equal treatment. The proof is in Pennsylvania. There, for instance, even though the election code prohibited inspecting ballots before Election Day, some county officials — those in larger counties with access to mail-sorting machines that could weigh ballots — weighed the ballots to determine if the voter failed to include the required inner secrecy sleeve.
Then those officials, again contrary to the election code, provided information to representatives of the Democratic Party so they could identify the voters whose ballots would be canceled. Voters whose election officials abided by the technicalities of the election code, however, did not receive that notice nor the opportunity to “cure” their ballot.
Now thanks to the unprecedented push toward mail-in voting over the last year, we are seeing this same pattern repeat itself throughout the country. Some election officials bent (or broke) the rules the legislative branch had set, while others followed the letter of the law. As a result, voters in different counties in the same state were treated disparately and on an arbitrary basis. Unlike the situation in Bush v. Gore, however, it is not the state courts altering the plain language of the election code, but secretaries of state or local election officials.
The majority in Bush v. Gore recognized the rightful place of election officials to interpret and apply the rules established by the legislative branch. This difference provides some leeway to states, which through interpretative guidance tweak the technicalities of the election code. But as in other areas of the law, such interpretations must be reasonable and must not violate the clearly expressed intent of the legislature.
The Supreme Court will likely decide where that line will be drawn in the coming days.