Waiter, There's a Judge in My Ballot Box

As documented by my colleague Bonchie here, Democratic presidential candidate Joe Biden has announced the formation of what he calls “the most extensive and inclusive voter fraud organization in the history of American politics.”

Making allowances for a certain degree of, erm, geezerhood on the part of Joe Biden, I will assume here that Mr. Biden did not intend to reveal that he plans to perpetrate massive voter fraud. Instead, he meant that he will be fighting voter fraud, presumably defined as votes for someone other than Joe Biden, wherever he sees it.

Please. No. A thousand times no. Our country cannot survive another Election By Lawsuit.

We do not need this in our national elections. We got a taste of it in 2000, when instead of conceding defeat, the estimable Albert Cardinal Gore decided to try to win in a courtroom what he had just lost at the ballot box. As we all know now, this ended up as Dueling Supreme Courts… the one in Florida that was full of Democrats and ruled every time in favor of Gore, and the one in DC that wasn’t and didn’t.

That episode was horribly destructive to the fabric of the nation. No matter whose side you were on, what you just watched was an election where votes either counted or didn’t depending on the whims of judges. And since an election is by definition a partisan dispute, the minute judges wade into it they become partisan players as well. They can’t help but look that way to whichever side loses, which is exactly what happened. To this day, Democrats insist that Al Gore won the 2000 election but that it was stolen from him by “conservatives” on the Supreme Court. Never mind whether you agree with that, please agree that the entire proceeding damaged the perception of the fairness and integrity of our nation’s court system in the minds of half the population, and had the long-term effect of strengthening the perception that the courts are simply another one of the political branches. Which is not a place anyone wanted to go.

Since then, the perception that judges are merely politicians in black robes has only strengthened. As we approach the 2020 election, our own Shipwreckedcrew has documented one case after another in which judges appointed by Obama decreed last-minute changes to state election laws that had been requested by Democrats, only to have the changes stayed or overturned within days by appeals court judges appointed by Trump or Bush:

That’s not even all of them. There have been almost one of these per day, as lawsuits are filed in every state to tweak the election laws in favor of one party or the other. No matter how many times Chief Justice Roberts assures us that there is “no such thing as an Obama judge or a Trump judge,” our everyday experience now is that the Chief Justice must have his head in a bucket because the rest of us can predict court rulings with 100% accuracy knowing only the political party of the president who appointed the judge.

But wait! It could get worse! It could get much worse. If we take Joe Biden at his word, unless he wins the election outright, he intends to blacken the sky with lawyers, filing suit in every state, in every county, in every Middlesex village and farm, to make sure that every election at every level has been decided by a judge… and not the voters. Doesn’t your heart just leap with joy at the prospect of this happening? Think of the rulings! Think of the appeals! Think of every single vote from sea to shining sea — all 130 million of them — appealed all the way to the Supreme Court.

This cannot be allowed to happen. It will destroy the courts, and it will destroy the nation. No one on either side will ever trust an election again. Most won’t even see a point in participating… it’s all going to be decided by judges anyway. And all along the way, every ruling will look exactly like what it is: a political partisan in a black robe usurping the role of the voters in deciding the outcome of an election.

The whole idea of dragging partisan elections into the courts to be decided there by judges, as if elections are legal disputes that rightly turn on the niceties of Yin v Yang 328 U.S. 343 (1971), is pernicious. It will destroy the Judicial Branch as an institution and it will ultimately delegitimize the government of the United States. Bush v Gore was an abomination, a mistake. It should never have been allowed to happen at the federal or state level. And it certainly should not be allowed to happen again.

We already have elections officials in place in every jurisdiction, empowered to resolve these disputes. Most of them are elected officials themselves, and thus — unlike judges — accountable to the voters for everything they do. The courts should politely decline to get involved, referring all disputes involving the manner in which elections are conducted to the appropriate Executive Branch officials. The courts were never intended to serve as referees in purely political matters, and they should not allow themselves to be used in such a manner.