One sentence from a Friday decision of the Wisconsin Supreme Court is true not just for the Badger State, but everywhere.
“If the right to vote is to have any meaning at all,” wrote the court majority in Teigen v. Wisconsin Elections Commission, “elections must be conducted according to law.”
A few sentences later, it continued: “The right to vote presupposes the rule of law governs elections. If elections are conducted outside the law, the people have not conferred their consent upon the government. Such elections are unlawful and their results are illegitimate.”
It is high time for all sides of the U.S. political debate to start recognizing these truths. Just as importantly, respect for the rule of law includes a willingness to abide by the decisions of the tribunals appointed to resolve disputes once they arise.
If former President Donald Trump and his minions dangerously transgressed the second part of that equation by trying to run roughshod over dozens of court decisions and determinations by Trump’s own attorney general, the political Left all too often ignores the first part of that equation. It repeatedly tries to make up voting rules on the fly and then justifies them not with reference to statutory language, but instead with ever-more-creative appeals to some sense of cosmic fairness divorced from the laws the people’s representatives have made.
That’s what was at issue in the Wisconsin case: voting rules promulgated ad hoc, unmoored from existing Wisconsin law.
In this instance, employees of the Wisconsin Elections Commission took it upon themselves to “authorize municipal clerks and local elections officials to establish ballot drop boxes” and further said that people supposedly acting on behalf of the voters could deliver ballots to the drop boxes. The memos vaguely said drop boxes should be “secure,” but did not provide means or guarantees to ensure they weren’t unsecured and unmanned.
As the state Supreme Court noted, state law does not authorize drop boxes. Instead, it requires absentee ballots to be delivered either by mail or by personally delivering them to the municipal clerk.
At issue was not whether drop boxes could serve as useful voting options without affecting the integrity of the election. At issue was not whether drop boxes make it more convenient to vote or whether such convenience is a good thing. Also not at issue was whether the practice of letting “agents” collect and deposit ballots for multiple people (what Wisconsin calls “ballot trafficking,” sometimes called “ballot harvesting”) is reasonable, rather than conducive of coercion or fraud. All those issues are for elected representatives of the people to decide. Instead, the only thing before the high court was what current state law says on those subjects.
In Wisconsin, not only did legislators never approve drop boxes or ballot trafficking, but not even the duly appointed election commissioners voted on the new procedures. Instead, hired employees promulgated them without democratic procedures. Naturally, the court looked askance.
“All lawful voters,” wrote the justices, “are injured when the institution charged with administering Wisconsin elections does not follow the law, leaving the results in question.” This results in “degrading the very foundation of free government.”
As long as the Left ignores these basic tenets of representative government and the rule of law, its methods will be illegitimate.
Meanwhile, as drop boxes and ballot harvesting are controversial issues nationwide, allow the Wisconsin legislature itself to explain why policymakers should be wary, and very careful, when considering such measures.
Wisconsin law states this: “The legislature finds that voting is a constitutional right, the vigorous exercise of which should be strongly encouraged. In contrast, voting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place.” That privilege, says the law, “must be carefully regulated to prevent the potential by fraud or abuse … [and] to prevent undue influence on an absentee elector.”
Whether or not those fears are well founded, they obviously are reasonable concerns. They are concerns not rightly decided by unelected bureaucrats, at the potential degradation of the foundations of free government.
