If you want a textbook exercise in selective use (or nonuse) of information and utter lack of logical reasoning to justify a healthy dose of judicial activism, look no further than Judge Shelly Dick’s ruling in Harding v. Edwards.
That’s the case in the Middle District of Louisiana contesting the state’s election procedures for fall elections. Voters sued the state, asking for more time to vote early and greater expansion of unverifiable excuses for not showing up in person and qualifying for a ballot to vote by mail. Democrat Pres. Barack Obama appointee Judge Shelley Dick bought just about all of their argument, ruling that the state had to revert to rules used this summer that exempted registrants subject to a medically necessary quarantine, experiencing COVID-19 symptoms or awaiting a diagnosis, caring for someone who is quarantined, or having a chronic health condition that imparts a higher risk of serious COVID-19 complications. It also temporarily waived the usual requirement that first-time voters must vote in person. And, early voting would expand in number of hours and days, although three days fewer than in the summer.
In her written opinion, Dick telegraphed early she would legislate from the bench with a vengeance when she noted the U.S. Supreme Court’s standing jurisprudence, reinforced in an April ruling, to interfere in how states conducted balloting, that the “Court has been presented with more than a handful of cases on the subject of elections during the pandemic, but has provided virtually no guidance,” but then cherry-picks a line from that decision, that it “should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate. That point cannot be stressed enough.”
Indeed, but that’s because this matter is a procedural question answerable only by the majoritarian branches. It’s not the job of courts to answer the “broader question” or to formulate “reforms.” Thereby trapped from giving the plaintiffs what they wanted, Dick then had to transform it into a substantive question about voter rights.
This she tried to do by construing the matter as some kind of denial of a constitutional right to vote, even though no such right exists in the Constitution, which is why states have great leeway in determining procedures and, except for suspect classifications elsewhere covered in Constitutional jurisprudence generally, exactly who may be eligible to vote, specifically including as part of that rationale the prevention of fraud. Having to circumvent that interest of the state, she attempted to support her assertions by creating a balancing test, where allegedly the burden on select voters exceeded the state’s interest in preventing polluted elections.
To do so, she ignored the data. Drawing upon the claims of the plaintiffs, who testified their polling places supposedly weren’t amenable to measures to prevent spread of the Wuhan coronavirus but who couldn’t qualify for a mail-in ballot under existing law, Dick called such measures unattainable in total. She took as gospel, or using her own intuition, the word of the plaintiffs, who felt “uncomfortable and unsafe” or “stressful and uncomfortable” in that environment.
But fact rather than emotion and conjecture must apply. To give just one example, in the Wisconsin April election, an analysis of voters who endured congested polling places showed simple measures (which did not include a uniform six feet between voters), which Republican Sec. of State Kyle Ardoin has long said his department can maintain at precincts – and most backed by emergency proclamations issued by Democrat Gov. John Bel Edwards, the defendant ironically joining with the plaintiffs – caused essentially no outbreaks of the virus. Instead of drawing upon this, or considering that after a couple of rounds of experience Ardoin’s office could improve upon implementation of measures, she improperly magnified this alleged cost solely on the word of the plaintiffs, who felt “uncomfortable and unsafe” or “stressful and uncomfortable.” In fact, she deliberately disparaged with little logic the views an expert witness who testified data generally showed adequate measures could be put in place for in-person voting.
First, she argued that past results could not predict the future because of the varying nature of the pandemic. But with that logic, almost anything could be pulled from the air to justify loose standards. For example, why not always have relaxed standards for fall elections, because a hurricane could strike and displace voters? Or whatever natural disaster you could conjure?
Second, she made avoidance of this particular virus sacrosanct. But why can’t the same logic be applied to the seasonal flu, or any other transmissible malady? Isn’t 1,500 deaths a year enough; why does it have to be more? And in trying to debunk testimony about other elections not being super-spreader kind of events by buying what another expert said, that studies not colleting data on the households voters returned to invalidated the claim, this assumes that individuals not studied not only contracted the virus in a harmful way from asymptomatic individuals at the polls, but it also accepts as a given asymptomatic individuals picked up the virus at the polls, instead of considering the null case that no transmission occurred in the first place. That’s an intellectually unsustainable argument.
Yet, interestingly and contradictorily, she propagated exactly the opposite view in regards to the costs to the state. Her main argument was she saw not “a scintilla of evidence of fraud associated with voting by mail in Louisiana” or “even a hint of fraud in the July and August primaries.” So, in the absence of evidence of virus transmission, she assumes it happened off-camera. But in the absence of evidence of fraud – defined as cases brought to the state’s attention – with so few that have come to light, this supposedly actually does reflect that basically none happens. You can’t have it both ways and make an intellectually consistent argument.
Dick wrote that only one case had popped up in Louisiana since 2005. Wrong. She obviously missed the most recent, relying upon a database listing known cases of voting fraud. However, what we know of is not the problem; the problem is there are far more instances that go undetected, as verified by political consultants who know of or who actually have practiced voter fraud, much of it centered on voting by mail.
The real issue here is that voting by mail by its very nature causes an unacceptable amount of the possibility of fraud. Voting by mail also creates substantially more invalid and spoiled ballots which in effect disenfranchises voters. Dick likewise totally ignored that fact in an extended discussion of the process of getting ballots to counters. Just because you leave your front door wide open when you leave the house and you return later not seeing anything obviously stolen doesn’t mean you should do it more often. If states want to take that risk, let the majoritarian branches do it if they want, but if they won’t agree, it’s constitutionally illegitimate to force them to do so.
Finally, perhaps the most disingenuous argument Dick makes is that past and current state practices support her practice of overvaluing costs to potential voters and undervaluing costs to the state. Or, continuing the metaphor above, just because the state leaves some doors open when absent from the premises doesn’t mean it should leave open more of them. She bolsters her “need” to act, she writes, to avoid “voter confusion” because the state hasn’t changed any election rules – which was caused by Edwards’ refusal to accept some changes solely to invite judicially activist intervention that she gladly followed through upon.
They got it – for now. The flaws in Dick’s argument noted here undoubtedly along with others will send this dreck to the same fate as her other past ruling that relied so heavily on legislating from the bench – overturning by the Fifth Circuit Court of Appeals. Republican Atty. Gen. Jeff Landry needs to appeal this, if only to stand up for the principle that even one fraudulent ballot cast indelibly stains American democracy, and that the state must squelch the credible possibility that this might occur whenever able.