I have written this piece for Slate. It begins:
In a preliminary order issued over the weekend likely designed to split the baby, a federal district court in North Carolina has told North Carolina election officials that they should follow a state court’s ruling to figure out which of thousands of military and overseas ballots cast by North Carolina voters should be thrown out in a dispute over the winner of a November state Supreme Court election. But the federal court also told election officials not to certify the winner of that election until it can decide if the state court–ordered remedy is unconstitutional.
This is a recipe for disaster. The federal court should have heeded the advice of Justice Antonin Scalia in the 2000 Bush v. Gore case about not allowing a questionable redo of vote totals to be announced before there’s been a ruling on the legality of the redo. The judge’s order in North Carolina could well lead people to believe the state Supreme Court election was stolen no matter what happens….
And Justice Richard Dietz, a Republican dissenting justice, was equally scathing, stating that he was wrong to believe “our state courts surely would embrace the universally accepted principle that courts cannot change election outcomes by retroactively rewriting the law.”
The constitutional problems with the court-ordered redo are deadly serious and risk election subversion. To begin with, changing the rules for ballot eligibility after the fact violates the due process clause of the U.S. Constitution’s 14th Amendment. Election law scholar Rick Pildes points to leading cases including a 1995 case, Roe v. Alabama, where federal courts stopped the Alabama Supreme Court from retroactively changing the results of an election to turn an election loser into an election winner. He points out how voters relied on state officials to tell them what they had to do to vote, and they all followed the state’s orders. It violates due process to disenfranchise them, as noted Republican election lawyer Ben Ginsberg argues. “By changing the rules of the game after it’s been played to potentially disenfranchise as many as 60,000 voters, this court has gone where no court has gone before,” Ginsberg told the New York Times. “Until this decision, courts facing challenges to ballots cast in compliance with past practice and election administrators’ instructions had uniformly sided with the voters.”
And the problem is even worse, as election law scholar Justin Levitt argues, because it looks like voters actually were complying with state law as it existed at the time….
With all of these constitutional problems, there is a good chance that a federal court is going to find that this attempt at election subversion by North Carolina courts violates the federal Constitution. If that’s the case, the best course of action is to decide the constitutional issues first before going through the process of trying to track down identification of voters overseas in combat or elsewhere around the world.
Indeed, a similar issue arose in Bush v. Gore. A Florida court had ordered a statewide recount of certain ballots. George W. Bush, who was ahead in the count, went to the U.S. Supreme Court arguing that the method of doing the recount was unconstitutional. But Bush asked the counting to stop as the Supreme Court considered the constitutional question, and the court agreed.
Scalia issued a concurring opinion arguing that stopping the counting until the constitutional issues could be addressed made sense in this context:
The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.
Scalia’s statement was controversial, because the presidential election was up against a strict deadline to finalize results for the presidency, and stopping the counting essentially allowed Bush to run out the clock. But that’s not at issue in the North Carolina case. This can be decided a few weeks or even months from now.
Even more importantly, Griffin’s arguments about the need to check voter ID comes at a time when bogus claims of voter fraud are rampant. If election officials cannot find enough overseas and military voters to send in copies of their photo identification in time and the result looks like it should flip, but then the federal court says afterwards that the redo is unconstitutional, people on Griffin’s side will wrongly believe fraud stole the election.
And of course if the federal court countenances this blatant due process violation and lets Griffin take office, the rest of us will see this rightly as a stolen election. And a bad sign for the rule of law in the United States and future fair elections….