Horowitz: Will the Supreme Court finally confirm Nov. 3 as Election Day?

Throughout this election season, lower federal court judges have illegally intruded into state election laws governing the qualifications of voters and voting procedures. The Supreme Court has largely allowed these lower courts to run roughshod over the constitutionally vested powers of state legislatures. Finally, Monday night, the Supreme Court smacked down a Democrat election sham to essentially extend Election Day for six days in the critical state of Wisconsin.

Liberal judges are using COVID-19 as an excuse to nullify long-standing voter integrity laws or registration and ballot deadlines. It's funny how this epidemic seems to result in every Democrat policy goal. In Wisconsin, a federal district judge took this meddling to the next level by ruling that absentee ballots don't have to be returned by Election Day so long as they are postmarked by Nov. 3. In doing so, the judge was not only illegally intruding on state powers to set qualifications for election procedures but was essentially nullifying the national Election Day.

On Monday, five Supreme Court justices sided with a Seventh Circuit decision to stay this district court ruling. While conservatives have been disappointed by some recent opinions of Justices Gorsuch and Kavanaugh, they both wrote solid concurrences categorically rejecting the notion that a judge can somehow legislate a new Election Day because of the virus.

In an opinion that is clearly a veiled shot not only at this lower court opinion, but at many of the other recent legislative changes to election law by liberal judges and governors, Gorsuch reminded people that the Constitution still matters.

The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules. Art. I, §4, cl. 1. … Nothing in our founding document contemplates the kind of judicial intervention that took place here, nor is there precedent for it in 230 years of this Court's decisions.

Justice Kavanaugh, in a lengthy concurrence, explains the absurdity of federal judges creating a right to tardy voting:

To state the obvious, a State cannot conduct an election without deadlines. It follows that the right to vote is not substantially burdened by a requirement that voters "act in a timely fashion if they wish to express their views in the voting booth." … Voters who, for example, show up to vote at midnight after the polls close on election night do not have a right to demand that the State nonetheless count their votes. Voters who submit their absentee ballots after the State's deadline similarly do not have a right to demand that the State count their votes.

I would argue further that any effort by any judge or political body other than Congress to backhandedly alter a federal election deadline is unconstitutional. Although states were to have control over all the administrative aspects of voting and voter eligibility (which courts are now violating), Congress was granted the authority to set the national Election Day for president. In 1845, Congress designated that day as "the first Tuesday after the first Monday in November." In 1872, Congress enacted the same law governing elections to the U.S. House (2 U.S.C. § 7), and when the 17th Amendment was ratified, Congress dictated that Senate elections should be held on the same day as well (2 U.S.C. § 1). Congress never intended voting to begin more than a month before that day, as is practiced in many states.

Also, the spirit of the Constitution clearly dictates that Election Day should be uniform. Although the clause dictating that the "day shall be the same throughout the United States" was referring to the day the electors choose the president, it was clearly understood as granting Congress the sole authority to set the uniform day for choosing the electors (what we regard as national Election Day).

The great constitutional historian Justice Joseph Story wrote that when Congress first designated the date for choosing the electors in 1792 (not just the date for the electors choosing the president), it was "in pursuance of the authority given by this clause."

When defending the election clause from those who felt it gave the federal government too much power, former North Carolina Gov. Richard Dobbs Spaight gave a robust defense at the North Carolina ratification convention on July 26, 1788. From the context of his words, it is clear that the power granted to Congress and the desire for uniformity applied both to the day the people choose the electors and to the day the electors actually vote for president:

Mr. Spaight replied, that he was surprised that the gentleman objected to the power of Congress to determine the time of choosing the electors, and not to that of fixing the day of the election of the President; that the power in the one case could not possibly answer the purpose of uniformity without having it in the other; that the power, in both cases, could be exercised properly only by one general superintending power; that, if Congress had not this power, there would be no uniformity at all, and that a great deal of time would be taken up in order to agree upon the time.

While many delegates to various state conventions objected to any federal control of elections, it was very clear that the Constitution, as eventually adopted, indeed vested Congress with the power to create a single election day.

The truth be told, it's hard to see how in-person early voting for an entire month doesn't violate federal law. Ever since the Presidential Election Day Act set that date as "the Tuesday after the first Monday in November," it's hard to see how a state holding multiple election days for in-person voting — without any excuse — is not a violation of this law, at least in spirit.

A quick glance at the congressional debates preceding passage of the election day law for presidents in 1845 and the election day for the House of Representatives in 1872 reveals that Congress clearly intended that states should have polls open only on the day prescribed in the statute. In 1871, Rep. Benjamin Butler (R-Mass.) spoke on the House floor about the need for a uniform voting day because otherwise "we may have a canvass going on all over the union at different times." Butler's concern was that it would give some states and political parties "an undue advantage." He spoke of how the announcement of vote results in some states helped influence the momentum of the election (Cong. Globe, 42d Cong., 2d Sess., 141 (1871)).

In his "Commentaries on the Constitution," Justice Story presciently observed that the need for a uniform day was "self evident":

Every reason of public policy and convenience seems in favour of a fixed time of giving the electoral votes, and that it should be the same throughout the Union. Such a measure is calculated to repress political intrigues and speculations, by rendering a combination among the electoral colleges, as to their votes, if not utterly impracticable, at least very difficult; and thus secures the people against those ready expedients, which corruption never fails to employ to accomplish its designs.

It goes without saying that, aside from the aforementioned reasons to end early voting, holding the vote over a protracted period invites corruption and fraud. It gives "those ready expedients" (think Soros community organizing groups) ample time for corruption "to employ to accomplish its designs."

The principle that Congress intended only one election day both for presidential and congressional elections because of voter fraud and undue influences was clearly expressed by Sen. Allen Thurman (D-Ohio) during debate on the 1872 law.

I think as a general principle it is best to have our elections on the same day whenever we can. We provided long ago by law that the election of electors of President and Vice President should take place on the same day throughout the United States, and for the same reason we may well provide that the election of member of Congress shall take place on the same day. Whenever you provide that elections shall take place upon the same day, you do interpose a not inconsiderable check to frauds in elections, to double voting, to the transmission of voters from one State to another, and you do allow the people to vote for their Representatives undisturbed by considerations which they ought not to take at all into account (Cong. Globe, 42 Cong., 2d Sess. 618 (1872) (remarks of Sen. Thurman)).

Unfortunately, early voting has become an obsession, as we continue to render verdicts in elections before the end of the trial, so to speak. But for now, it is to be hoped that the Supreme Court will at least put an end to the practice of arbitrary late voting imposed on states by liberal judges. John Roberts, in a short concurrence in the Wisconsin case, made it clear that he felt less inclined to reverse similar decisions in Pennsylvania. However, with Amy Barrett on the court, those who believe in the rule of law might no longer need Roberts for the fifth vote.