Take Care: The Unwritten Story In Alabama: They Almost Didn’t Hold An Election

This is a cross-post of our post at Take Care Blog. The memo can be found here.

In all of the discussion about the political ramifications of yesterday’s special election in Alabama, let’s not lose sight of the most important point: there was an election.  That shouldn’t be taken for granted.  We were dangerously close to a situation in which one party orchestrated the delay of an election to avoid losing—a situation that would have endangered the very foundation of our democracy.  Because such an idea was even considered at a high level—Senate Majority Leader Mitch McConnell reportedly sent a secret memo to the White House Counsel’s Office floating theories for how to do this—we must take seriously the threat that such a plan could be deployed in another election in the future. We must also be clear now on why that would never be permissible (or constitutional).

To recap: In the weeks leading up to the special election, as accusations of misconduct appeared to weaken Roy Moore’s standing in the polls and it seemed he might leave the race, Republican leaders explored options for delaying the election—presumably to reduce their party’s chances of losing.  To her credit, Governor Ivey never gave any public indication that she was considering a delay.  But the next governor placed in her shoes may not be so principled.  Troublingly, one study earlier this year found that half of the Republican respondents said that they would support postponing an election if President Trump called for it.

Postponing or canceling an election to shore up one party’s chances of victory would be dangerous and antithetical to American democracy.  It would also be unconstitutional.

The Founders cited King George III’s failure to hold timely elections as one of the justifications for our Declaration of Independence.  And the 1864 presidential election proceeded as scheduled, even while half the country stood in armed rebellion and hostile armies camped a few days’ march from Washington, D.C.  As President Lincoln observed, “We can not have free government without elections; and if the rebellion could force us to forego, or postpone a national election, it might fairly claim to have already conquered and ruined us.”

One little-known clause in the Constitution, the Guarantee Clause in Article IV, enshrines the promise of a republican form of government: “The United States shall guarantee to every State in this Union a Republican Form of Government.”  The Founders included this to ensure government where the people ruled.  As the Supreme Court put it in an 1891 case: “the distinguishing feature” of a republican form of government “is the right of the people to choose their own officers for governmental administration.”

That promise of a republican form of government is further reflected in other constitutional provisions guaranteeing the right to vote and the freedom of political association.  This includes the First and Fourteenth Amendments—and for certain elections the Seventeenth Amendment as well.  Our organization Protect Democracy has released a legal memo today describing in more detail the constitutional provisions that prohibit partisan delay of elections.  In short, fundamental to these Constitutional guarantees is the notion that elections will be held in a timely and regular manner—and that to do otherwise would undermine the very premise of republican democracy.

The Constitution affords states substantial latitude to regulate elections, and the states regularly exercise that authority to ensure that elections proceed in an orderly manner.  But as the U.S. Supreme Court has explained, this authority “may not be exercised in a way that violates other specific provisions of the Constitution,” and it does not “justify, without more, the abridgment of fundamental rights, such as the right to vote … or … the freedom of political association.”

Any decision to postpone or cancel an election—whether federal or state, primary or general, regularly scheduled or specially set—would therefore require close constitutional scrutiny.  In some narrow cases, a decision to cancel or postpone an election might survive that scrutiny, such as when a natural disaster, terrorist attack, or similar circumstance makes conducting an election on the scheduled date unsafe or physically impossible.

But a decision to delay driven by pursuit of partisan advantage or to improve one candidate’s prospects of success has no such legitimate justification and would violate constitutional protections enshrined in the First and Fourteenth Amendments.  If such a move is threatened again in connection with a future election, courts can and should step in to prevent the infringement of Americans’ constitutional rights and to enforce the constitutional safeguards of republican democracy.  And the legal memo we’ve released today lays out why courts would have all needed authority to do so.

A healthy democracy depends on both political parties being committed to something more than simply maintaining political power at all costs.  The fact that some even considered delaying an election because of fears about the eventual result should be a deeply troubling warning sign to all concerned about the present state of democratic governance in the United States. The founding generation did not create the American republic to enshrine the right of one party to pass tax cuts or to appoint a particular judge—they did so to enshrine the principle that just governments can only derive their powers from the consent of the governed.  So if nothing else, let’s take off the table once and for all the idea that those in power can delay or cancel elections when they are worried about the verdict that the people may render.

Justin Florence is Legal Director and Cameron Kistler is Counsel at Protect Democracy(@protctdemocracy)