Americans and the media are increasingly worried that the election will be decided not by the voters, but by the courts. It doesn’t have to go this way. You may have missed the Election and Electors Clauses of the United States Constitution in your civics class, but they leave no room for the growing wave of litigation reducing public confidence in a contentious presidential election in the wake of a public health crisis.
The Elections Clause says, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” The Electors clause is equally clear: “each State shall appoint, in such Manner as the Legislature thereof may direct,” electors to meet and select the President and Vice President.
Under these constitutional provisions, State legislatures have modified election law in light of the present crisis, balancing the needs of those who cannot or do not wish to be in public against the need for safeguards like witness requirements and voter verifications. Precisely because such decisions are hard, only people’s elected representatives in state legislatures—institutions that represent rural, urban, and suburban voters of both parties across each state—can forge compromises that protect the rights of voters and the sanctity of the ballot.
Both national parties have bargained hard in changing these laws to protect the interests of their constituents. But when liberal activists haven’t gotten their way in the state house, their next stop has been the courthouse.
This year has now produced hundreds lawsuits filed by liberal activists seeking to rewrite election law. Despite the Supreme Court’s repeated warning that courts should rarely intervene to disturb election law on the eve of an election, many courts have been doing just that.
The left-wing assault on North Carolina’s election law, which is now under consideration by the Supreme Court of the United States, may be the most egregious example in the country. On June 12, Gov. Roy Cooper (D) signed the North Carolina Bipartisan Elections Act into law. An overwhelming majority of Republicans and Democrats came together to address the rules for an election during a pandemic. In this process, they agreed on some changes, such as changing the witness requirement for absentee ballots from two witnesses to one, but rejected other proposals like setting out unmanned drop boxes and extending mail-in deadlines far beyond November 3.
Not satisfied by compromise, liberal activists proceeded to file multiple lawsuits against the new law. Courts rules against them across the state—until the North Carolina Board of Elections, comprised of a majority of Democrat nominees, abruptly announced they had secretly negotiated a settlement with the liberal plaintiffs to give them what they could not get through the legislature. This backroom deal effectively eliminate the absentee witness requirement and adopted significant changes the legislature rejected, including a nine day extension of the mail-in ballot deadline and ballot drop off stations.
This is nothing short of Democrat collusion to use a court settlement to rewrite the law. Cut out of the process by this deal, the leaders of the North Carolina state legislature went to federal court to defend not only the bipartisan compromises, but the constitutional authority of the legislature over election rules.
Now it is up to the Supreme Court to restore the constitutional balance in North Carolina. This case is also a broader opportunity to put a stop to the litigious chaos that has eroded public confidence in our elections since Bush v. Gore. As highly-respected Fourth Circuit Judge Harvey Wilkinson wrote in the last stop before the case was appealed to the Supreme Court, “it takes no special genius to know what this insidious formula [of activist litigation] is producing” –turmoil and lack of “public confidence in the federal courts, state agencies, and the elections themselves.” A ruling for the state legislature in this case would put the people’s representatives back in charge of election rules, exactly where the Constitution puts them, and make clear that only legislative compromise, not lawsuits or court orders, can change election law.
Phil Berger is the President Pro Tempore of the North Carolina State Senate. Tim Moore is the Speaker of the North Carolina House of Representatives.