Sen. Amy Klobuchar prefers that judges be in control of election rules rather than lawmakers. That was the position she took at Amy Coney Barrett’s Supreme Court confirmation on Tuesday.
Klobuchar said her mind was boggled by the Supreme Court’s recent ruling reinstating South Carolina’s absentee ballot witness signature requirement, a provision codified in the state’s election law which an unelected federal district judge had decided was too burdensome a requirement during the pandemic (notably, none of the justices filed dissents against the high court’s order). “In the middle of a pandemic, you’ve got to go and get a witness,” she said in exasperation.
Having someone — anyone — sign off on the validity of an absentee ballot is too burdensome?
“In the middle of a pandemic” is a new catch-all to argue that all non-legislative election law changes are permissible. The disappointing fact for Klobuchar must be that South Carolina’s duly elected legislature — whose job it is to write election laws — got together and passed legislation to make it easier to vote during the pandemic, expanding absentee voting because of COVID-19. Removing the witness requirement was not one of the reform measures that lawmakers enacted.
That should be the end of it, but of course it wasn’t until the Supreme Court made it so. As Justice Kavanaugh wrote in concurrence of the court’s witness requirement order, “It follows that a state legislature’s decision either to keep or to make changes to election rules to address COVID–19 ordinarily ‘should not be subject to second-guessing by an ‘unelected federal judiciary,’’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.” Precisely, although this comes much to Klobuchar’s dismay.
Klobuchar also fulminated about Texas, whose Republican governor ordered counties to stop setting up ballot drop-off locations at their own whims. A federal district judge overruled the governor but was then reversed by the Fifth Circuit Court of Appeals. “For those of you who thought a judge took care of that a few days ago, he did, but then yesterday three Trump-appointed judges came in reversed that so we’re back to one ballot box for people to drop their ballots off in a county of 4.7 million people,” Klobuchar said. State law doesn’t permit the use of multiple drop-off locations, nor did the governor wish to permit it willy-nilly and nor did the appeals court.
In Texas’s case, the overreach goes both ways. Gov. Greg Abbott overstepped his authority in all this by ordering a suspension of certain election laws in the first place, unilaterally expanding early voting without the legislature. As Judge James Ho, one of the “Trump-appointed judges” wrote, “Only the district court’s rewriting of Texas law is before us today, however. And that leads us to an unfortunate irony: by setting aside only the district court’s rewriting of Texas law, we must restore the Governor’s rewriting of Texas law.”
Non-legislative election law changes have been ordered in several other states as well. Nobody will be happy in this environment, with judges changing laws and governors, too. This is the job of lawmakers.
Democrats and other liberals so frequently complain that there’s too little democracy going on in the U.S. But what could be more undemocratic than an unelected legislative judiciary? The pandemic does not make all things permissible for courts, nor for the governors who make unconstitutional executive orders, even though so many would prefer that it does.
