Working Towards Free Elections

Margot Cleveland on the Virginia race, and what it portends for 2022.

Earlier this month, Fairfax County, Virginia... previewed the attacks on election integrity likely planned for the midterm cycle of 2022 and beyond. There, election officials in the deep-blue county approved absentee and mail-in ballot applications lacking the statutorily mandated last four digits of the voter’s Social Security number, then promptly mailed these unauthenticated individuals ballots for next Tuesday’s election.

So, executive agencies violating the laws passed by the legislature -- and signed into law by an executive -- again. As she points out, courts are not stepping up here.

Judge Andrew Oldham dissented from the Fifth Circuit’s decision. In concluding the case was not moot, Oldham, a Donald Trump appointee, highlighted the supplemental letter brief submitted by the county. “Harris County not only refused to disclaim unlawful drive-through voting for future elections — it promised to continue that practice,” Judge Oldham wrote.

Oldman continued, “Harris County has taken the remarkable position that it (1) wholly ignored provisions of the Texas Election Code in 2020, and (2) can continue wholly ignoring those provisions in future elections — notwithstanding the Legislature’s express instructions to the contrary.”

What is to be done? She recommends making these practices crimes.

Make it a crime for an election official to mail a ballot to a resident if the application submitted fails to satisfy the requirements set by the legislative branch. Make it a crime for an election official to provide a ballot to a resident if he or she lacks the mandated identification. Make it a crime for an election official to count a ballot if it is returned beyond the legislatively established deadline.

Line-by-line review the election code and for every mandate make clear that ignoring it means a fine or imprisonment. Then authorize the state legislature to appoint a special counsel to prosecute the offense if a local prosecutor refuses.

There's more, but that last line is crucial: the executive branch will simply refuse to prosecute crimes it wants to encourage. We saw that yesterday in Wisconsin, and it has become standard practice in many cities and a few states.