A Simple Summary of the Fight over Election Laws

Voters wait in a 90-minute line to cast their ballots on the first day of the state’s in-person early voting for the national elections in Durham, N.C., October 15, 2020. (Jonathan Drake/Reuters)

NRO has hosted a lot of great pieces about the current fights over election laws — see Andy McCarthy and Dan McLaughlin — but I wanted to add a very simple three-point breakdown of why we’re in the situation we’re in:

1. There is evidence, as FiveThirtyEight has summarized, that “some Democratic-leaning voting blocs, such as young voters, are more likely to cast last-minute absentee votes as well as provisional ballots.” Naturally, this provides an incentive for Democrats to make lenient policies regarding these types of ballots, and for Republicans to oppose such policies, especially in an election where so many people are voting by mail.

2. The Constitution allows Congress to set the timetable for the presidential election (the public votes on November 3, the Electoral College on December 14), but “the Legislature” of each state is given leeway to set other election rules.

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3. Given the above, the obvious play for Democrats is to pass laws creating generous rules for ballots received by mail. However, a lot of lenient rules this year are coming not from state legislatures, but instead from other actors taking it upon themselves to rewrite state law — typically pointing to the pandemic as an excuse, even though states have had months to decide how to handle voting during COVID-19. Sometimes it’s a federal judge, sometimes a state court, sometimes an election board stepping in. The Constitution doesn’t empower these other actors to change the rules and deadlines that “the Legislature” of a state has settled on, which gives the federal Supreme Court a reason to get involved.

Each situation presents its own legal difficulties — for instance, the Supreme Court is more likely to check a lower-court federal judge than it is to override a state court’s interpretation (no matter how dubious) of its own state’s law, and it also hesitates to change election rules close to the election. Meanwhile, the Left is throwing histrionic temper tantrums every time the Court insists that the law on the books be followed, John Roberts is reluctant to stir that pot, and Amy Coney Barrett has been sitting on the sidelines, reportedly because she hasn’t had time to consider the cases yet. So we get the odd mix of rulings we’ve been seeing.

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