Election Rules Shouldn’t Change in the Middle of an Emergency

September 4, 2020
By Timothy Sandefur

The Arizona Supreme Court agrees with the Goldwater Institute: Election rules shouldn’t be changed in the midst of an emergency.

The court today issued its decision in the lawsuit brought months ago by advocates of certain ballot initiatives who asked the court to suspend the laws specifying how signatures can be gathered to put an initiative on the ballot. The court indicated back in May that it was ruling against the plaintiffs, but today’s opinion explains in detail why the effort to change the election rules in an emergency—and without the legislature’s involvement—is such a bad idea.

The case involves Arizona’s constitutional requirement that petition signatures be gathered in person. Due to the recent “shutdowns,” the initiative’s proponents argued that gathering signatures in person would be too difficult, and that as a consequence, the laws requiring that violated their rights to freedom of speech and to vote. In our friend of the court brief, the Goldwater Institute explained why that’s not the case: The rules don’t violate anyone’s free speech rights (they’re just as free to talk as they ever were), and the right to vote is not the same thing as the purported right to put something on the ballot. Worse, we argued, changing the rules of an election in the middle of a crisis would be a profoundly misguided idea. The United States held an election in the middle of the Civil War—and during the 1918 Spanish Flu epidemic.

By contrast, in other countries, where elections have been suspended in moments of crisis, the results have often been the destruction of democracy. That may seem like an extreme example, but setting a precedent in this case, we warned, could open the door to such extreme situations in the future. “Emergencies are precisely when critically important constitutional democratic procedures should be strictly adhered to,” we wrote in our brief:

Such moments are when people are least likely to dispassionately weigh the costs and benefits of election rules affecting the indefinite future, or to account for potential consequences of the rules they create in haste. That is even more true of an effort to invoke the aid of courts to alter the rules without a full deliberation by all stakeholders or a vote by elected representatives. As Justice Jackson warned in the midst of another national crisis, executive emergency powers may not be susceptible to judicial second-guessing, but a court decision which upholds an extreme or undemocratic action in the heat of a crisis can be “a far more subtle blow to liberty’ because it ‘lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

In today’s opinion, the court agreed with the Institute’s position. The signature gathering requirements do not violate free speech rights—in fact, they protect those rights—and rewriting the rules of the electoral process due to an emergency could set a dangerous precedent: “The people of this state look to us to uphold the law, and we must act consistently with that imperative,” the court explained. “[The plaintiffs] fail to see the long-term damage such a decision would cause to our system. Applying a rule of necessity here, we would justify setting aside other laws and constitutional protections whenever a crisis or emergency arises. Indeed, if COVID-19 justifies setting aside Section 1(9) today, then perhaps tomorrow it will be used to set aside other constitutional protections. In short, our decision would lie ‘about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need….’ We sometimes forget the sacrifices it took to create and preserve a nation based on the rule of law. It is easy to take for granted. And lest we forget, the people who established this system faced emergencies too. But they understood the dangers posed by governing by necessity, especially in times of crisis. We should respect and embrace their wisdom.”

This is a welcome development. In the pressures of the past few months, many prominent voices have called for fundamental, potentially far-reaching changes in our democratic system on account of the national emergency. Today’s decision makes clear that whatever changes need to be made, they should be made by elected representatives through the constitutional process—not on an ad hoc basis that could undermine the rule of law.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.