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Burning the Ballots
The Judiciary doesn't belong in the electoral process.

by Barnabas
November 3, 2004

As election day approaches, scholars and other partial observers are growing concerned that another disputed vote count -- no matter who emerges as the victor -- might create a lasting impression that in America no election is final until each side has exhausted its legal remedies. —San Francisco Chronicle, August 29.

Election Day is over as you read this, but without doubt some elections throughout the country will be in dispute. Lawyers have clustered, and when that happens it’s a sure thing that they will find work for themselves. Elections are messy operations, so errors will have been made and the suspicion of cheating will arise, if not generally, at least here and there.

Lawyers and courts, however, have no legitimate role in an election. To allow them a determining role, as happened so publicly in 2000, violates the Constitution and outrages the very concept of "government by the people." We allowed the Supreme Court to call the election of the President, as though we were playing football and the Court was the referee. Even though the interested parties participated in the hope of a specious victory for their side, the whole thing was an embarrassing anomaly, not a precedent. 

If it were a garden club operating under Robert’s Rules, instead of the Hope of the Free World ignoring its Constitution, the whole shameful business would be "expunged from the minutes." (This does not mean "erased." It means that a decisive line is drawn through the item in the minutes, indicating that while it did in fact occur, it should not have and must not be treated as though it did.)

As I read the U.S. Constitution, the Courts are given no role in the electoral process. Strictly speaking, while there is election to national office, there is no such thing as a national election. The Constitution sets the parameters by which Congress and the Executive officers (President and Vice-president) are elected, but the process is detailed by the respective states. The Constitution establishes that the House of Representatives is the court of last resort for the election of the President,  the Senate for the Vice-president, and also that each house of Congress recognizes its own members.

The Judiciary branch has zero responsibility in an election, even in emergency. Tyrannies usually begin as "emergencies"; somebody with power gets tired of doing it right and does it quick instead. If he, she, or they get away with it, they try it again on a larger scale. Because of what we allowed in 2000, we are now coming as close as possible to the spectacle of lawyers, representing interested parties, virtually looking over our shoulders as we vote.

"But what about the cheating?!" I can hear the anguished scream. "We have to do something! We can’t let them get away with it!"

The verb tense is wrong. We had to do something, but many states did not, so we are stuck with possible dire consequences. By the time the polls opened, it was too late. We had our turn, and shame on us. Good electoral law is like effective birth control - to be taken care of before, not after. If state and local officials wanted to make elections nearly foolproof, they could have. Some no doubt have; I didn’t research the fifty states, but if the news is representative, cheating seems to be a lot easier in some places than in others. It might be corruption, it might be carelessness rising to the level of corruption, but in either case we have to live with the result.

I get the impression that on the whole we don’t mind so much living with the result if the cheating helped our side win. It’s not cheating as a principle, but cheating by the other side,  that really makes us squawk.

Once the responsible state body or officer signs off on the election results, the election is over. The results are reported to the Congress. And that’s it. In disputed matters the respective houses of Congress are given the ultimate right to determine who their members are; if the Executive branch election has no clear winner, the House names the President and the Senate the Vice-president.

If we do not trust the Congress as the court of last resort, at least we elected them and don’t have to re-elect them.

When I was in Canada, there was the custom, in a voluntary society I belonged to, of "burning the ballots" after an election was declared. It was a symbolic declaration of the society’s willingness to trust, flaws and all, the process we had agreed to.

We cannot burn the ballots in the literal sense, but I hope we will in the metaphorical sense—making it more possible to learn from our blunders and fix the flaws before the next election. That is a different world, ethically, from sitting around for four years trying to figure out how to make the flaws work for our side next time.

About the Author:
Barnabas is a citizen, not a constitutional scholar, but then the document was written for citizens.

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