Where Do We Go to Get the Integrity of Our Vote Back?

The Supreme Court in Washington on Nov. 5, 2020. J. Scott Applewhite/AP Photo

Commentary 

The Supreme Court’s refusal to grapple with 2020 presidential election lawsuits concerning patently dubious policymaking by judges in Pennsylvania is a dereliction of duty of the highest order.

Its unwillingness to grant certiorari is particularly glaring because the claims of malfeasance are so straightforward, the issues at hand are so fundamental, and the imperative to adjudicate them is so acute, given the likeliness for them to recur and influence future elections.

The cases concern who makes the election rules: state legislators, or nonlegislative officials, including judges. The Constitution would seem to indicate the former, given that it’s state legislatures tasked with determining the “The Times, Places and Manner of holding Elections for Senators and Representatives,” as well as the “Manner” by which electors are appointed.

Yet Pennsylvania, like several other states who conferred power to make the rules upon nonlegislators, believed otherwise. As Justice Clarence Thomas recounted in his dissenting opinion:

“The Pennsylvania Legislature established an unambiguous deadline for receiving mail-in ballots: 8 p.m. on Election Day. Dissatisfied, the Pennsylvania Supreme Court extended that deadline by three days. The court also ordered officials to count ballots received by the new deadline even if there was no evidence—such as a postmark—that the ballots were mailed by Election Day.”

“These cases provide us,” Thomas asserted, “with an ideal opportunity to address just what authority nonlegislative officials have to set election rules, and to do so well before the next election cycle.

“The refusal to do so,” he concluded, “is inexplicable.”

Indeed. If election rules can be altered at any time, under any circumstance, by authorities other than elected representatives—even if said rule changes are reasonable and don’t promote lawlessness—the entire election process becomes tainted. The damage to the separation of powers is a secondary but no less devastating consequence.

Since the Supreme Court dismissed cases such as the Pennsylvania ones, which screamed for adjudication, again given that they touched on the highest priority election question of who makes the rules, it’s clear that Americans have no place left to go to ensure the integrity of the vote is protected. That the high court similarly punted on other 2020 presidential election lawsuits claiming significantly more egregious violations in the content of the rules only adds insult to constitutional injury.

Consider the other institutions that have failed us.

State governments of course permitted, or at best failed to thwart, the chicanery that transpired during the election under cover of the extraordinary circumstance of the Chinese coronavirus pandemic.

Lower courts—having in the months leading up to the election often acceded to left-wing activists engaged in lawfare to permit the erosion of the integrity of the vote—allowed it to further wither by tossing out dozens of similar cases to the Pennsylvania ones on technical grounds. That is, like the Supreme Court, they refused to judge the claims on their merits.

Now Congress is poised to foist on the country legislation enshrining the very dubious emergency election rules and regulations—mass mail-in balloting, vote harvesting, weakened verification standards, acceptance of ballots days after the election, etc.—that enabled the alleged raft of fraud, illegality, and corruption that proliferated in 2020, or at a minimum created the opportunity for such mischief.

The executive branch has indicated it would support such legislation.

This is to say nothing of the complicity of the fourth estate. Corporate media has demonstrated little desire to investigate claims of improprieties regarding the presidential election, and Big Tech has actively censored anything that would challenge the official narrative about the election—censorship to which the author has himself been subjected.

The Capitol riot has served to further obscure attention from the legitimacy of the 2020 election and make reasonable questions about it verboten.

That political institutions provided no recourse—and, in some cases, clearly violated their duties—is a betrayal of the system from which they derive power. Republican government relies on the consent of the governed, who provide it through their votes. The legitimacy of those votes undergirds the legitimacy of the entire constitutional order. Once the vote is seen as illegitimate, and every venue is seen as hostile to if not reflexively dismissive of questions about it, the entire system loses its legitimacy.

This is why Thomas was right when he concluded in his dissenting opinion that: “The decision to leave election law hidden beneath a shroud of doubt is baffling. By doing nothing, we invite further confusion and erosion of voter confidence. Our fellow citizens deserve better and expect more of us.”

To the extent that pending legislation in Congress does pass, and America finds itself further unmoored from a system in which election rules are set well in advance by our representatives—in which we vote in person, having verified our identity, on a single Election Day—this confidence will only further wane.

The question we are left asking is, who will restore confidence in our system by defending our vote?

Ben Weingarten is a fellow of the Claremont Institute and co-host of the Edmund Burke Foundation’s “The NatCon Squad.” He is the author of “American Ingrate: Ilhan Omar and the Progressive-Islamist Takeover of the Democratic Party,” and is currently working on a book on U.S.–China policy and its transformation under the Trump administration.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.