A number of critics have attacked South Carolina’s involvement in the election lawsuit that went to the U.S. Supreme Court. Now that the court has decided not to hear the suit, I would like to address the attacks, but first I will explain my position with a simple analogy.
Consider an example where two football teams are playing for the national championship, and in the final seconds of the game one team scores the game-winning touchdown. As the winning team celebrates, a camera angle of the touchdown shows that the player who ran the ball into the end zone might have stepped out of bounds before crossing the goal line.
Editors note: You can read our response to this column here.
The coach of the presumptive losing team challenges the last play by asking the referee for a review. The reason for this challenge is because if it is determined that the player stepped out of bounds before scoring, then the rules were violated and the touchdown is not legitimate. The coach has a duty to exhaust all remedies available to him; otherwise, he is not doing his job.
Just like football, elections have rules that must be followed to the letter before a winner can be declared. In this particular case, the rules for federal elections are given to us in the U.S. Constitution, and I interpret those rules to say basically that laws dictating the time, location and manner of elections should be determined by state legislatures and no one else.
A number of state officials from other states — well-intentioned or not — unilaterally rewrote the laws through executive fiat, which is, arguably, a violation of the "electors clause" of the Constitution. For example, in one state the legislature passed a law that said ballots must be received postmarked by 8 p.m. on Election Day. The court in that state, which is a non-legislative body, extended the deadline by three days and waived the requirement for a postmark on the mail-in ballot.
I believe the Constitution only grants the state legislature with the legal authority to change the deadline and postmark requirements, not another state official. This raises the question, in this particular example, of whether the ballots received days after the election with no postmark are in fact legal votes and, if they are not legal votes, should we still count them? Other examples can be cited, but either way, this is analogous to a player allegedly stepping out of bounds.
Normally I would never intervene in another state’s business, nor should I. However, presidential elections are national elections where oftentimes the outcome is determined by only a few states. If state officials were to unilaterally change their state law and those changes might have affected the outcome of the national election, then the voters of all the other states who voted for the other candidate would be disenfranchised.
There is an appellate process in football that allows a coach to challenge the results of a play when that coach believes the other team may have violated the rules. The referee reviews the play and either agrees with the challenge or disagrees with the challenge. The losing team had the opportunity through that process to exercise its right to challenge. This process is what legitimizes the final results of the game.
In this case, the Supreme Court was our referee, and there was an allegation that a constitutional violation had occurred. The process for choosing our president allows the states the opportunity to challenge a questionable result. The Supreme Court had the authority to decline to hear the lawsuit, but we had the right to present this important issue. Even though the Supreme Court rejected the lawsuit, moving forward we should not allow election officials to unilaterally change election laws. Such changes severely diminish the integrity of elections.
It’s amazing that so many have criticized the states for daring to raise this question before the court on behalf of so many who believe the rules have been violated. I wonder if this righteous indignation would be as loud if the roles were reversed. History suggests that it would not.
Alan Wilson is the attorney general of South Carolina.