Earlier this month, Fairfax County, Virginia — a locale that broke 70-30 for President Joe Biden and Democrat Sen. Mark Warner in 2020 — previewed the attacks on election integrity likely planned for the midterm cycle of 2022 and beyond. There, election officials in the deep-blue county approved absentee and mail-in ballot applications lacking the statutorily mandated last four digits of the voter’s Social Security number, then promptly mailed these unauthenticated individuals ballots for next Tuesday’s election.
While last week the Virginia Institute for Public Policy (VIPP), a public policy organization dedicated to election integrity, filed suit against the county registrar and the three members of the Fairfax County Electoral Board responsible for flouting state election law, a hearing on the case is not scheduled until Friday. By then, the election will be only days away and a court is unlikely to order ballots returned by the deadline discarded.
We saw this precise scenario come to pass throughout the United States in 2020, with state officials ignoring the election code dictates established by the legislative branch. But the lawlessness happened too late for lawsuits to wind through the court system in time for the decision to matter.
Just Monday, as if to punctuate the problem playing out in real-time in Fairfax County, a federal appellate court in Hotze v. Hudspeth dismissed as moot a challenge to Harris County, Texas’s use of drive-through voting in the 2020 election. The majority opinion also refused to enjoin the county, which encompasses the urban area of Houston, from using this prohibited practice in future elections.
Judge Andrew Oldham dissented from the Fifth Circuit’s decision. In concluding the case was not moot, Oldham, a Donald Trump appointee, highlighted the supplemental letter brief submitted by the county. “Harris County not only refused to disclaim unlawful drive-through voting for future elections — it promised to continue that practice,” Judge Oldham wrote.
Oldman continued, “Harris County has taken the remarkable position that it (1) wholly ignored provisions of the Texas Election Code in 2020, and (2) can continue wholly ignoring those provisions in future elections — notwithstanding the Legislature’s express instructions to the contrary.”
But what more can the legislative branch do if election officials ignore the laws the lawmakers establish and courts do nothing about it? The answer: punish them.
Make it a crime for an election official to mail a ballot to a resident if the application submitted fails to satisfy the requirements set by the legislative branch. Make it a crime for an election official to provide a ballot to a resident if he or she lacks the mandated identification. Make it a crime for an election official to count a ballot if it is returned beyond the legislatively established deadline.
Line-by-line review the election code and for every mandate make clear that ignoring it means a fine or imprisonment. Then authorize the state legislature to appoint a special counsel to prosecute the offense if a local prosecutor refuses.
State legislatures should further provide individual voters a civil “right of action,” or a right to sue the election officials for damages at a statutorily set amount. After all, voters who follow the law are the ones disenfranchised when their legal vote is canceled out by an illegal vote.
Of course, election officials ignoring or changing the rules is but half of the problem: As 2020 also revealed, judges are likewise substituting their will for the will of the legislative branch, but by the time the case reaches a higher court, it is too late.
We saw that in Pennsylvania last year when the state Supreme Court ignored the legislative deadline established for mail-in ballots as 8 p.m. on Election Day, and the Pennsylvania Supreme Court extended the deadline by three days. However, when the Republican Party of Pennsylvania sought review by the U.S. Supreme Court, the justices refused to hear the case.
Justice Clarence Thomas dissented from that decision, writing that it was “inexplicable” that the court refused to hear the case to determine if the state high court’s rewriting of the rules violated the Elector’s Clause of the U.S. Constitution. That clause provides that state legislatures have the authority to determine the “manner” of federal elections.
While a ruling that the Pennsylvania Supreme Court decision violated the Elector’s Clause would not affect the outcome of the 2020 presidential election, “we may not be so lucky in the future,” Justice Thomas wrote. Accordingly, he believed the high court should have accepted the case and clarified the law.
The Supreme Court’s refusal to resolve the Elector’s Clause issue presented in the Pennsylvania case ensures that 2022 will bring more of the same: Last-minute lawsuits filed in favorable forums (read: heavily Democratic areas) seeking an injunction to override the legislatively adopted election code.
State legislators have few options available to confront this scenario, making the Supreme Court’s refusal last term to address the problem in the Pennsylvania case all the more disappointing. One possible option, though, would be to remove jurisdiction, i.e., take away their power to hear cases, from state courts on challenges to “the time, place and manner” for the election of senators, representatives, or electors, established by the state legislature.
Of course, such challenges could still be brought in the federal court system, but this approach would limit the mischief being done by state court judges.
Whether either of these approaches would work is unknown. But the status quo is clearly not working — unless you’re a Democrat and don’t care about election integrity.
