And the reasons for rejecting or dismissing cases.
Recall the kerfuffle over the mechanisms by which the 2020 elections, particularly for President were carried out. Recall, also, the plethora of election fraud-related cases that were brought in State and Federal courts. Recall, further, that the vast majority of those cases—all but one or two—were rejected by those same courts over standing, or “ripeness,” or other procedural and technical grounds and not on the merits of the cases. Even our Supreme Court ducked—twice—hearing cases strictly on a technical matter and not on any merit.
Now, we’re getting different court outcomes.
- Michigan, where the State Court of Claims concluded that Democratic Secretary of State Jocelyn Benson’s instructions on signature verification for absentee ballots violated state law.
- Wisconsin, the state Supreme Court handed down a significant ruling in December when the justices concluded that state and local election officials erred when they gave blanket permission allowing voters to declare themselves homebound and skip voter ID requirements in the 2020 elections.
- Virginia, a judge in January approved a consent decree permanently banning the acceptance of ballots without postmarks after Election Day, concluding that instructions from the Virginia Department of Elections to the contrary in 2020 had violated state law.
This sort of delay—three to five months—isn’t actually all that unusual; litigation often takes considerable time, especially on matters where data collection, witness identification and testimony, evidence collection generally are the occupants of that time.
However.
An election, particularly a national election, has functional deadlines for certification and Electoral College voting, counting, and certification that are very much nearby on the calendar. Such deadlines require much more timely handling of litigation related to the election at hand.
Elections, too, have the evidence ready to hand—an Arizona county’s stalling efforts not withstanding. Witnesses are known and ready to testify, the data are clear and present in the form of post office mailing records, election officials’ collected paper and electronic ballots, computerized voting machine data. All of these have only to be collected and audited, witnesses deposed. That needn’t take three to five months to get started, and the cases in court needn’t take three to five months to adjudicate and get to verdicts.
We need legislation—the States need legislation, not the Federal government—that pushes the pace of election-related litigation. Procedural rules regarding this sort of litigation need to be adjusted to provide a preference for hearing the cases and for reducing opportunities for stalling delay by either the plaintiffs or the defendants.
We do, also, need a modicum of legislation at the Federal level—to adjust procedural rules to provide a preference for hearing election-related cases rather than (apparently) being spring-loaded to reject on this or that technical ground.
Such Federal legislation would violate our Constitution’s separation of powers? If the Federal courts, including the Supremes, want to get sticky about that, here’s what our Article III, Section 1 Constitution actually has to say on this matter:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
Article III, Section 2 provides a more targeted alternative, and one that can be used to circle back to Section 1:
…the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The several States can take similar responsive measures under their own constitutions.
