That’s the case in the Middle District of
Louisiana contesting the state’s election procedures for fall elections. Voters
sued the state, asking for more time to vote early and greater expansion of unverifiable
excuses for not showing up in person and qualifying for a ballot to vote by
mail. Democrat Pres. Barack
Obama appointee Judge Shelly Dick bought
just about all of their argument, ruling that the state had to revert to
rules used this summer that exempted registrants subject to a medically
necessary quarantine, experiencing COVID-19 symptoms or awaiting a diagnosis,
caring for someone who is quarantined, or having a chronic health condition
that imparts a higher risk of serious COVID-19 complications. It also
temporarily waived the usual requirement that first-time voters must vote in
person. And, early voting would expand in number of hours and days, although three
days fewer than in the summer.
In her written
opinion, Dick telegraphed early she would legislate from the bench with a
vengeance when she noted the U.S. Supreme Court’s standing jurisprudence,
reinforced in an April ruling,
to interfere in how states conducted balloting, that the “Court has been
presented with more than a handful of cases on the subject of elections during the
pandemic, but has provided virtually no guidance,” but then cherry-picks a line
from that decision, that it “should not be viewed as expressing an opinion on
the broader question of whether to hold the election, or whether other reforms
or modifications in election procedures in light of COVID–19 are appropriate.
That point cannot be stressed enough.”
Indeed, but that’s because this matter is a procedural
question answerable only by the majoritarian branches. It’s not the job of
courts to answer the “broader question” or to formulate “reforms.” Thereby trapped
from giving the plaintiffs what they wanted, Dick then had to transform it into
a substantive question about voter rights.
This she tried to do by construing the matter as some
kind of denial of a constitutional right to vote, even though no such
right exists in the Constitution, which is why states have great leeway in
determining procedures and, except for suspect classifications elsewhere
covered in Constitutional jurisprudence generally, exactly who may be eligible
to vote, specifically
including as part of that rationale the prevention of fraud. Having to
circumvent that interest of the state, she attempted to support her assertions
by creating a balancing test, where allegedly the burden on select voters
exceeded the state’s interest in preventing polluted elections.
To do so, she ignored the data. Drawing upon the
claims of the plaintiffs, who testified their polling places supposedly weren’t
amenable to measures to prevent spread of the Wuhan coronavirus but who couldn’t
qualify for a mail-in ballot under existing law, Dick called such measures
unattainable in total. She took as gospel, or using her own intuition, the word
of the plaintiffs, who felt “uncomfortable and unsafe” or “stressful and
uncomfortable” in that environment.
But fact rather than emotion and conjecture must apply.
To give just one example, in the Wisconsin April election, an analysis of
voters who endured congested polling places showed simple measures (which did
not include a uniform six feet between voters), which Republican Sec. of
State Kyle
Ardoin has long said his department can maintain at precincts – and most
backed by emergency proclamations issued by Democrat Gov. John Bel Edwards, the
defendant ironically joining with the plaintiffs – caused
essentially no outbreaks of the virus. Instead of drawing upon this, or
considering that after a couple of rounds of experience Ardoin’s office could
improve upon implementation of measures, she improperly magnified this alleged
cost solely on the word of the plaintiffs, who felt “uncomfortable and unsafe”
or “stressful and uncomfortable.” In fact, she deliberately disparaged with
little logic the views an expert witness who testified data generally showed
adequate measures could be put in place for in-person voting.
First, she argued that past results could not predict
the future because of the varying nature of the pandemic. But with that logic,
almost anything could be pulled from the air to justify loose standards. For
example, why not always have relaxed standards for fall elections, because a
hurricane could strike and displace voters? Or whatever natural disaster you
could conjure?
Second, she made avoidance of this particular virus
sacrosanct. But why can’t the same logic be applied to the seasonal flu, or any
other transmissible malady? Isn’t 1,500 deaths a
year enough; why does it have to be more? And in trying to debunk testimony
about other elections not being super-spreader kind of events by buying what
another expert said, that studies not colleting data on the households voters returned
to invalidated the claim, this assumes that individuals not studied not only
contracted the virus in a harmful way from asymptomatic individuals at the
polls, but it also accepts as a given asymptomatic individuals picked up the
virus at the polls, instead of considering the null case that no transmission
occurred in the first place. That’s an intellectually unsustainable argument.
Yet, interestingly and contradictorily, she
propagated exactly the opposite view in regards to the costs to the state. Her
main argument was she saw not “a scintilla of evidence of fraud associated with
voting by mail in Louisiana” or “even a hint of fraud in the July and August
primaries.” So, in the absence of evidence of virus transmission, she assumes
it happened off-camera. But in the absence of evidence of fraud – defined as
cases brought to the state’s attention – with so few that have come to light, this
supposedly actually does reflect that basically none happens. You can’t have it
both ways and make an intellectually consistent argument.
Dick, who wrote only one case had popped up in
Louisiana since 2005 showing she obviously
missed the most recent, relied upon a database listing known cases
of voting fraud. However, what we know of is not the problem; the problem is
there are far more instances that go undetected, as verified by political
consultants who know of or who actually have practiced voter fraud, much of it centered
on voting by mail.
The real issue here is that voting by mail by
its very nature causes an unacceptable amount of the possibility of fraud –
and also creates, which Dick likewise totally ignored in her calculus in an extended discussion
of the process of getting ballots to counters, substantially more invalid and
spoiled ballots which in effect disenfranchises voters. Just because you leave
your front door wide open when you leave the house and you return later not
seeing anything obviously stolen doesn’t mean you should do it more often. If
states want to take that risk, let the majoritarian branches do it if they
want, but if they can’t agree to take it, it’s constitutionally illegitimate to
force them to do so.
Finally, perhaps the most disingenuous argument Dick
makes, on more than one aspect, is that past and current state practices
support her practice of overvaluing costs to potential voters and undervaluing
costs to the state. Or, continuing the metaphor above, just because the state
leaves some doors open when absent from the premises doesn’t mean it should leave
open more of them. She claims the state’s more lenient rules this summer and
regarding current mail-in ballot rules for some classes of individuals doesn’t justify
extending that. And, related to that, she bolsters her “need” to act, she wrote,
to avoid “voter confusion” because the state hasn’t changed any election rules –
which was caused by Edwards’
refusal to accept some changes solely to invite judicially activist
intervention that she gladly followed through upon.
They got it – for now. The flaws in Dick’s
argument noted here undoubtedly along with others will send this dreck to the
same fate as her other past
ruling that relied so heavily on legislating from the bench – overturning
by the Fifth Circuit Court of Appeals. Republican Atty. Gen. Jeff Landry needs to appeal this, if
only to stand up for the principle that even one fraudulent ballot cast
indelibly stains American democracy, and that the state must squelch the credible
possibility that this might occur whenever able.
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