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The Executive Branch Must Act Within Its Authority

Voting will be different this year with paper ballots
SCOTUS case may right overreach by Executive and Judicial branches
To Be Determined

Published in The Galveston County Daily News
January 4, 2023

A monumental case now before the U.S. Supreme Court might turn on its head the process that states may develop for electing Federal officials including Senators, Representatives and the President. During 2020, states -- most often without consent from their legislatures -- drastically altered election procedures and rules. The most often abused were unsolicited mail-in-balloting and unstaffed drop boxes. Other rule changes included the timing for the acceptance of mail-in-ballots. Most often governors, or even the courts themselves, assumed the powers in making these changes under the guise of public safety, but without the concurrence of their state legislatures. The U.S. Constitution strictly authorized a process, which grants only state legislatures that power, “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”   Congress was granted the authority to intervene if it found reason to do so. On a few occasions, it did so.

>The case currently before SCOTUS, Moore v. Harper, is a case from North Carolina.  It may revisit the role of state legislatures, governors and courts within the states, primarily preventing ad hoc procedural modifications, often times taken without restrictions.  Although the case focuses on practices related to setting legislative districts (redistricting), the ruling could reach much further including election and voting processes. An important question that may be addressed is can a governor or court make significant election rule changes – even in an emergency situation like COVID -- without the legislature being involved. 

Critics of the “originalist” interpretation of ”state legislatures” refer to Ginsburg’s definition which holds that the meaning of “state legislatures” actually means the whole of state government, not just the legislature. There’re several problems with this interpolation. In one place, the Constitution specially granted the appointment of U.S. Senators to the state legislatures.  This practice was changed with the adoption of the 17th amendment.  The Constitution also clearly delineates differences between states, state legislatures and in whole state governments. This case may well define who has the authority to change the rules of the game.  The Constitution states Congress has authority only to make appropriate changes to the voting process for federal elections. Interestingly, there’s a bill by Mike Schofield (R-Harris County) in the Texas House that would separate federal from state elections should the Congress decide to take over the election process (for example by authorizing same-day voter registration or outlawing voter ID requirements). Schofield’s bill would preclude the Feds from regulating Texas elections. 

Our view is that the plain meaning written in the Constitution ought to be upheld for at least two reasons. First, it’s what’s in the Constitution. Second, the founders placed power in a representative government, a means which best fits protecting the sovereignty with the subdivided, localized districts within states, minimizing the real possibility that large populated area could overrun the wish of those in rural or smaller areas. We believe the Court should place the Constitutional meaning within the realm of the state legislatives.   

About the Authors and Columnists
Bill Sargent and Mark Mansius


Bill Sargent and Mark Mansius have written
over 250 guest columns since 2014 and continue to do so.
Bill lives in Galveston, Texas and Mark in St. Georges, Utah.
Both ran against each other in the 2012 Republican Primary
for Texas Congressional District 14, since then
they have become close friends and colleagues.