The matter reached the court when Texas finally declared, enough! The specific complaint dealt with inappropriate changes to the procedures for voting in Pennsylvania, Michigan, Wisconsin, and Georgia. The argument is simple. The Constitution explicitly hands authority over elections to state legislatures. Every state has enacted complicated and precise procedures for the conduct of elections. In at least those four defendant states, various executive officials charged with conducting elections simply ignored those laws and ran the elections in ways that they deemed better suited to the times.
According to Texas, the many states aligned with it, and even Pennsylvania’s own legislative leaders, the ways that those officials ran the elections were more than just violations of state election law. They were unconstitutional attempts to bind their respective legislatures, influence the identity of our national leaders, and disadvantage the citizens of the complaining states.
Yet election law is hardly the only place we’ve seen this phenomenon. When the Chinese Communist Party (CCP) unleashed the virus that became a global pandemic, officials across the United States saw it as a license to rule by fiat.
In 2020, “public health” became the catch-all excuse for draconian executive action. Governors divided human activity into the “essential” and the “non-essential,” then applied different rules to the two categories. Unsurprisingly, those categorizations conformed quite well to the governors’ own political preferences.
In the name of public health, we’ve witnessed unprecedented attacks on religious communities, organizations, and practices. In the name of public health, we’ve shut down schools and businesses. In the name of public health, we’ve rendered workers unemployed and bankrupted entire communities. In the name of public health, we’ve harassed, arrested, and fined Americans doing little more than operating their legal businesses. In the name of public health, we’ve sent police to arrest citizens for walking in the street without wearing an approved face mask. In such a context, why not rewrite election laws—in the name of public health.
All of these government actions were undertaken as emergency measures. They didn't go through the legislative process through which we’re supposed to enact our laws. They didn't go through the notice-and-comment period that’s supposed to justify our regulations. They arose simply at the whim of an executive official. The people they harmed had little recourse beyond the courts—which were closed for much of the year. Judicial intervention at its very best, however, is a mechanism for correcting past wrongs. That we needed them at all is a sign that the constitutional structure that’s supposed to restrain governmental attacks on the citizens failed badly.
What’s more, it’s not remotely clear which of these executive actions, if any, had a net benefit on public health. That’s hardly surprising. They were all actions taken in the heat of the moment, under emergency powers, without much analysis and deliberation. With the help of a compliant press, anyone who questioned their propriety or their effectiveness—or who even raised the question of their cost—was immediately defamed as callously indifferent to human life.
For the past nine months, many of the states that constitute the United States have been governed as dictatorships, not as parts of a federal republic. Laws change overnight at the whims of a few executive decision-makers. The only limiting requirement is that the executive must inform the public that this particular whim—like all others—is needed to forward the cause of public health.
For the court to preserve the republic, it must do more than simply condemn rogue executive action. It must make clear to the citizens of the defendant states that their officials disenfranchised them and return the franchise to the state legislatures.
That would mark the start of making rogue executives bear the political costs of their actions. More importantly, it would turn us away from the brink of dictatorship back toward our beloved republic.