The death of Ruth Bader Ginsburg and President Trump’s subsequent nomination of her replacement, Amy Coney Barrett, have made courts and the varying judicial philosophies of judges into a major subject of this election season.
Because of its primacy, the Supreme Court has gotten most of the attention, but various lower-court decisions on matters related to voting procedures for the November election have demonstrated once again that judicial overreach happens much closer to home. The rulings in Pennsylvania, Wisconsin, Minnesota, Michigan, and Georgia are all examples of the threat of a too-ambitious judiciary whose rulings amount to legislation.
The Pennsylvania Supreme Court, whose judges are elected in partisan elections, has liberally interpreted state election code, saying that it allows for “county boards of election to accept hand-delivered mail-in ballots at locations other than their office addresses including drop-boxes,” even though the code does not employ the use of such boxes.
“This conclusion is largely the result of the clear legislative intent underlying Act 77,” the court writes, referring to the legislation that created Pennsylvania’s current mail-in voting regime, “which animates much of this case, to provide electors with options to vote outside of traditional polling places.” The court says the state code “undeniably exemplifies this intent by granting the Pennsylvania electorate the right to vote by way of a mail-in ballot beyond the circumstances that ordinarily allow this alternative, such as voter absenteeism.” In other words, Act 77, which the governor signed in October 2019, explicitly expanded voters’ ability to vote by mail, and so, its spirit also implicitly allows for election boards to use drop boxes.
The court also deems that the interpretation put forth by the Republican litigants that the code does not authorize drop boxes “restricts voters’ rights,” even though the bill — which, again, was passed by a Republican Legislature and signed by a Democratic governor in 2019 — does not include language employing drop boxes as a method of better enfranchising voters.
More consequential is the Pennsylvania court’s decision to push the received-by deadline for mail ballots from 8 p.m. on Election Day, or Nov. 3, to Nov. 6. A number of other courts have acted similarly in other states. A state judge in Michigan ordered that mail-in ballots be counted as long as they arrive within 14 days of the Nov. 3 general election and as long as they are postmarked by Nov. 2.
A federal district court in Wisconsin ruled that if they are postmarked by Election Day, as state law requires, mail-in ballots may arrive as late as Nov. 9. In Georgia, a federal judge ruled that officials must keep counting mail-in ballots for three days beyond the Nov. 3 statutory deadline, as long as they are postmarked by Election Day.
“The Court notes it is reluctant to interfere with Georgia’s statutory election machinery,” Judge Eleanor Ross wrote. “However, where the risk of disenfranchisement is great, as is the case here, narrowly tailored injunctive relief is appropriate.”
There are plenty of possible objections to the substance of these judicial actions, but the objection put forward here is one of purview. In their rulings, the courts trampled on the function of state legislatures, whose duty it is to craft election code. It is their responsibility to amend that code, and that can be achieved even in a pandemic, as states such as Nevada and South Carolina showed.
Nevada’s Democratic governor, Steve Sisolak, called special legislative sessions during the summer, during which the Legislature passed a bill to deal precisely with pandemic voting procedures. Assembly Bill 4 directs election officials to send mail-in ballots to all registered voters, sets the postmark date as Election Day, and the receipt deadline as seven days after Election Day.
South Carolina’s Legislature also passed legislation to amend its absentee voting rules in light of the pandemic, allowing all voters who wish to do so to mail in ballots because of COVID-19. The changes were not as extensive as Nevada’s, but the point remains: The legislatures changed the rules.
“We recognize that the determination of that [timeline for ballot receipt] is fully enshrined within the authority granted to the Legislature under the United States and Pennsylvania Constitutions,” the Pennsylvania court says in its opinion, making an apparent concession, and then offers this: “nevertheless.”
In an old essay, Jennifer Siebels and the late Peter Augustine Lawler write with the Supreme Court in mind, but their analysis applies to these judges, too: “The justices are merely human. For them, as for us, reason cannot be separated from self-love.” Referring to Brutus, the anonymous anti-federalist whose letters in part rather presciently criticized the Constitution’s creation of the judicial power, they remember Brutus’s words that judges will tend to rule to “enlarge the sphere of their own authority.” Lawler, Siebels, Brutus: All three of them were right.
