Sunday, July 05, 2020

1889 Institute: A Judicial Attack on Election Integrity


A Judicial Attack on Election Integrity
By Benjamin Lepak

The Oklahoma Supreme Court recently attempted to rewrite Oklahoma’s election laws, behind closed doors, on a compressed timetable, and without public input. All with an election looming in which the new rules would apply.

In May, the Court eliminated the requirement that absentee voters confirm their identity with a notary. Under the ruling, absentee voters would be permitted to vote with little more than a promise they are who they say they are, while in-person voters would still be required to show ID.

The lawsuit was filed by a coalition of progressive organizations called “Let the People Vote,” claiming voters could contract COVID-19 from notaries.

Count me skeptical. The coalition looked an awful lot like the one supporting State Question 802’s Medicaid expansion. They even hired the same law firm. The lead plaintiff in the case, the League of Women Voters, features only two advocacy items on its webpage, “Let the People Vote” and “Yes on State Question 802.”


The ruling was substantively bad policy. With Oklahoma’s history of absentee ballot manipulation, requiring notarization is a reasonable fraud prevention measure.

Equally concerning, the Court made its dubious ruling in a rushed, highly unusual process largely away from public view, giving the State less than a week to respond to the lawsuit and holding no public hearing. The entire litigation lasted a mere 11 days, including weekends. The Court misapplied a law intended for civil lawsuits to voting laws.

On a matter as important as election integrity, we deserve more than a slipshod process. Moreover, as one dissenting justice warned: “the issues stand presented to the wrong branch of government.”

Fortunately, the issue was swiftly addressed by the right branch of government. Mere days after the court’s decision, the Legislature restored the notarization requirement for normal elections. Unfortunately, it also allowed voters to scan or copy their ID instead of requiring notarization for elections during the pandemic.

Revealingly, the Democratic Party filed another lawsuit challenging the new law, claiming it imposed unreasonable burdens on voters because some do not own a scanner or printer.

Events have proven them wrong. The June primary featured a huge increase in mail-in voting. Nearly 100,000 people voted absentee compared to around 15,000 during the June 2018 primary, which included a highly contested governor’s race. One of two things must be true: either our absentee voting laws pose no real obstacle to voting or there was massive voter fraud under the relaxed scanned-ID rule.

Either way, those who argue for lowering our election integrity standards do not have the facts on their side. It is telling that those who claim to protect the right to vote run to the courts to impose their policies instead of working through the democratic process. Then again, the left never lets pesky things like facts get in the way of their lawmaking-by-litigation strategy.

Benjamin Lepak is Legal Fellow at the 1889 Institute. He can be reached at blepak@1889institute.org.

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