The Supreme Court and appellate courts are drawing back from voting madness

One of the most important things Trump accomplished in his first term — with Sen. Mitch McConnell's support — has been to place strict constructionists on federal courts across America, including the Supreme Court.  These judges interpret legislation and determine whether it is constitutional, rather than legislating from the bench.  This matters because Democrats are using the Wuhan virus as an excuse to ignore longstanding state legislation governing elections.  On Tuesday, both the Supreme Court and the Ninth Circuit ruled against activist judges.  These decisions may reflect the fact that at least some judges believe that siding with the status quo could help prevent a civil war.

In Andino v. Middleton, the Supreme Court was asked to determine whether a federal district court could use the Wuhan virus as a reason to overturn the South Carolina Legislature's refusal to change the state's existing voting laws.  These laws, enacted in 1953, required that residents voting by mail get a witness to sign their ballots.  Democrats were not asking the Court to determine whether the existing legislation was unconstitutional.  Instead, they wanted the judge to override the legislation because they were peeved that the Republican majority refused to do so.

The district court judge, an Obama appointee, eagerly seized the opportunity to change the existing law to do away with the witness requirement.  She didn't include the Legislature in this decision.  She did it by judicial fiat.

At the Supreme Court, something interesting happened.  All eight justices — not just the four strict constructionists — held against the district court judge.  They reversed the district court's ruling, although they held that absentee votes that had already been mailed could be counted.  (Justices Alito, Thomas, and Gorsuch would have disallowed even that small exception.)

Justice Kavanaugh wrote a short concurring opinion that warns leftist federal judges to stop rewriting election laws.  It's the job of the state's Legislature, which is "politically accountable," not the job of a federal court, to decide what to do during pandemics:

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."

Ultimately, district courts lack the appropriate accountability to second-guess the Legislature.  Therefore, as elections draw near, district courts should not interfere with state election laws:

Second, for many years, this Court has repeatedly emphasized that federal courts ordinarily should not alter state election rules in the period close to an election.

Let me reiterate that Kavanaugh put down a baseline: decisions about how votes should be cast belong to legislatures, not judges.  Judges across America would be well advised to remember that.

The Ninth Circuit, which was, for a long time, the hardest-left, most activist appellate court in America, is also getting with the program:

Today the Ninth Circuit granted a stay of an order issued by District of Arizona Judge Douglas Rayes — an Obama appointee — invalidating an Arizona statute requiring early voters to return their ballots along with a signed ballot affidavit to polling officials by 7:00 PM on Election Day.

[snip]

On September 22, 2020, Judge Rayes enjoined Arizona election officials from enforcing the election day deadline for "curing" a defective early-voter ballot and affidavit, and ORDERED the State of Arizona:

"to create and to institute a new procedure that would grant voters who failed to sign their ballots up to five days after voting has ended to correct the error."

Once again, a district court judge meddled in an area that is almost entirely the Legislature's unique purview.  The Ninth Circuit, however, held that the Arizona law met the reasonableness requirement for ballot access and stayed the district court's order.  It also held that "the public interest is well served by preserving Arizona's existing election laws."

The 9th Circuit made the right decision.  What's intriguing is that it was a unanimous decision from three judges appointed by Reagan, Clinton, and Obama.  This parallels the four hard-left and left-leaning judges on the Supreme Court refusing to let a lower court judge amend South Carolina's laws.

While leftist district court judges are busy playing politics, more thoughtful and mature judges, even though they're leftists, may have decided that they'd rather play by the old rules and lose an election than face the possibility that a bloody civil war occurs because of the Democrats' new rules.

Image: United States Supreme Court (cropped) by Jarek Tuszyński.  CC-BY-SA-3.0 & GDFL.

One of the most important things Trump accomplished in his first term — with Sen. Mitch McConnell's support — has been to place strict constructionists on federal courts across America, including the Supreme Court.  These judges interpret legislation and determine whether it is constitutional, rather than legislating from the bench.  This matters because Democrats are using the Wuhan virus as an excuse to ignore longstanding state legislation governing elections.  On Tuesday, both the Supreme Court and the Ninth Circuit ruled against activist judges.  These decisions may reflect the fact that at least some judges believe that siding with the status quo could help prevent a civil war.

In Andino v. Middleton, the Supreme Court was asked to determine whether a federal district court could use the Wuhan virus as a reason to overturn the South Carolina Legislature's refusal to change the state's existing voting laws.  These laws, enacted in 1953, required that residents voting by mail get a witness to sign their ballots.  Democrats were not asking the Court to determine whether the existing legislation was unconstitutional.  Instead, they wanted the judge to override the legislation because they were peeved that the Republican majority refused to do so.

The district court judge, an Obama appointee, eagerly seized the opportunity to change the existing law to do away with the witness requirement.  She didn't include the Legislature in this decision.  She did it by judicial fiat.

At the Supreme Court, something interesting happened.  All eight justices — not just the four strict constructionists — held against the district court judge.  They reversed the district court's ruling, although they held that absentee votes that had already been mailed could be counted.  (Justices Alito, Thomas, and Gorsuch would have disallowed even that small exception.)

Justice Kavanaugh wrote a short concurring opinion that warns leftist federal judges to stop rewriting election laws.  It's the job of the state's Legislature, which is "politically accountable," not the job of a federal court, to decide what to do during pandemics:

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."

Ultimately, district courts lack the appropriate accountability to second-guess the Legislature.  Therefore, as elections draw near, district courts should not interfere with state election laws:

Second, for many years, this Court has repeatedly emphasized that federal courts ordinarily should not alter state election rules in the period close to an election.

Let me reiterate that Kavanaugh put down a baseline: decisions about how votes should be cast belong to legislatures, not judges.  Judges across America would be well advised to remember that.

The Ninth Circuit, which was, for a long time, the hardest-left, most activist appellate court in America, is also getting with the program:

Today the Ninth Circuit granted a stay of an order issued by District of Arizona Judge Douglas Rayes — an Obama appointee — invalidating an Arizona statute requiring early voters to return their ballots along with a signed ballot affidavit to polling officials by 7:00 PM on Election Day.

[snip]

On September 22, 2020, Judge Rayes enjoined Arizona election officials from enforcing the election day deadline for "curing" a defective early-voter ballot and affidavit, and ORDERED the State of Arizona:

"to create and to institute a new procedure that would grant voters who failed to sign their ballots up to five days after voting has ended to correct the error."

Once again, a district court judge meddled in an area that is almost entirely the Legislature's unique purview.  The Ninth Circuit, however, held that the Arizona law met the reasonableness requirement for ballot access and stayed the district court's order.  It also held that "the public interest is well served by preserving Arizona's existing election laws."

The 9th Circuit made the right decision.  What's intriguing is that it was a unanimous decision from three judges appointed by Reagan, Clinton, and Obama.  This parallels the four hard-left and left-leaning judges on the Supreme Court refusing to let a lower court judge amend South Carolina's laws.

While leftist district court judges are busy playing politics, more thoughtful and mature judges, even though they're leftists, may have decided that they'd rather play by the old rules and lose an election than face the possibility that a bloody civil war occurs because of the Democrats' new rules.

Image: United States Supreme Court (cropped) by Jarek Tuszyński.  CC-BY-SA-3.0 & GDFL.