Before you know it, we won’t need Congress at all; we’ll just have judges make the laws in this country.

Apparently judges all over the country have decided that they are empowered to create or change election laws. After all, they are demonstrating compassion and understanding for all those people who have been victims of the Covid-19 pandemic. The fact that those citizens have had weeks to plan for their preferred method of voting is irrelevant. Just ask the Democrats.

Several states now have judges who are changing election laws. Their rulings cover a large and creative list of reasons:

Without any consistency of reason or justification beyond ‘Pandemic = limitations bad,’ several district court judges have limited or eliminated measures requiring witnessing or confirming signatures of absentee ballots, factual justification for absentee voting, extending deadlines for receipt of mailed ballots, excusing the absence of postmarks on mailed ballots, adopting of a presumption of timely mailing in the absence of evidence to the contrary, mandating that states/counties allow ballots to be deposited in a ‘drop boxes’ without any security features, allowing voters to access voting devices while sitting in their cars, eliminating limitations on third party ability to deliver ballots on behalf of absentee voters, express expansion of ‘vote harvesting’ authorization, etc.

When we look at the Federal Elections Clause, however, it is specific about the body that has the power to change election law (including the Federal government itself):

One unusual feature of the Elections Clause is that it does not confer the power to regulate congressional elections on states as a whole, but rather the ‘Legislature’ of each state. The Supreme Court has construed the term ‘Legislature’ extremely broadly to include any entity or procedure that a state’s constitution permits to exercise lawmaking power. Thus, laws regulating congressional elections may be enacted not only by a state’s actual legislature, but also directly by a state’s voters through the initiative process or public referendum, in states that allow such procedures.

Neither election boards nor judges are included.

How serious is the problem of “legislating from the bench”?

Several states’ judges and election boards have over-reached their power. Here are just a few examples:

North Carolina

A federal judge has temporarily blocked the State Board of Elections’ attempt to rewrite N.C. elections law. The board had tried to use a state-level lawsuit settlement to change absentee ballot rules. U.S. District Court Judge James Dever issued a temporary restraining order on Saturday, Oct. 3, blocking a proposal to remove witness signature requirements from absentee ballots.

Georgia

On Friday, the 11th Circuit Court of Appeals entered a Stay with regard to a Preliminary Injunction granted by a District Court Judge of Georgia. Using COVID 19 as an excuse — as other district court judges are doing across the country — the federal judge in Georgia issued an Injunction preventing Georgia state election officials from enforcing the ‘7:00 pm on election day’ deadline for receiving absentee ballots to be counted, and ordering Georgia officials to count all ballots received up to three days after Election Day if validly postmarked on or before election day.

Alabama

U.S. District Judge Abdul K. Kallon issued the ruling today in favor of people and organizations who sued … election officials over …. ban on curbside voting, the requirement that absentee ballots be signed by a notary or two witnesses, and the requirement for a photo ID with absentee ballot applications. Kallon ruled that the ban on curbside voting, the witness requirement, and the photo ID requirement, as applied during the COVID-19 pandemic, violated federal law and voting rights for people at serious risk of illness because of medical condition, disability, or being over 65.

Pennsylvania

Republicans want a state Supreme Court ruling blocked that would allow ballots to be counted in the swing state for the rest of election week, Axios reports. A stay from the justices would revert the deadline to 8pm on Election Day, Nov. 3. Not only do thousands of ballots hang in the balance, but the decision could be an indication of what the court will do in future election cases. President Trump won Pennsylvania in 2016, and his reelection campaign is against such extensions. The court invoked its power to extend deadlines during a disaster emergency, citing concerns about postal delays and increased requests for mail-in ballots this year.

Several other state judges are trying to “adjudicate” changes to election law. Many blame the pandemic; others appeal to the compassion of those involved with reviewing their rulings. None of these actions are being taken, as the law demands, by the state legislatures.

We already have evidence of errors, malfeasance, and confusion in those states that have tried to use universal mail-in ballots earlier this year. Ballots have disappeared, been thrown away, and been miscounted. To try this process for the first time when there will be great demands on the election process does not bode well. And now judges are determined to exert their own biases on the system.

Most of these cases have received a temporary stay; plaintiffs can then appeal to the Supreme Court. The hope by many who visualize major chaos ahead for the 2020 election, regardless of whether these changes are enacted, is that the Supreme Court will rule in a way that clarifies who is eligible to make changes to the election law. They could endeavor to send a message to every state that is undeniable:

Judges cannot legislate from the bench.