Does the Constitution Have a “Pandemic Exemption”?

             The topic of conversation for this Constitution Monday concerns the need for judges who make their decisions according to the Constitution. It is essential for judges to follow the law in all cases. Otherwise, there are two systems of justice in our nation, and the world seems like it has been turned up-side-down.

            When COVID-19 came to our nation, government officials at all levels were forced to respond to the pandemic. Some of them responded in a way that would strengthen the people that they represent, and others not so much. Zack Smith and Hans von Spakovsky posted an article about our up-side-down world at The Daily Signal. They wrote that even people “who mean well need to be reminded that our Constitution contains no ‘pandemic exception’.”

Federal judges need that reminder, too. For example, on Oct. 12, three Trump-appointed judges from the 5^th U.S. Circuit Court of Appeals made this exact point when they dissolved a federal district court’s order that would have allowed Texas counties to place multiple, unmonitored absentee ballot drop boxes in unsecured locations, in violation of state law.

Fifth Circuit Judge Kyle Duncan, writing for himself, and Judges Don Willett and Jim Ho – all three of whom have been mentioned as potential Supreme Court nominees – stayed a lower court ruling that claimed that Texas Gov. Greg Abbott’s order, which limited ballot drop boxes to “a single early-voting clerk’s office location [in each county],” was unconstitutional.

The three judges found that the governor’s proclamation “abridges no one’s right to vote.”

            Instead of limiting opportunities for people to vote, the three judges noted that Texas Gov. Greg Abbott had “expanded the options available for Texans to vote in-person or to vote by absentee ballot.” Proclamations made by the governor opened the polls a week earlier, expanded the length of time to hand deliver mail-in ballots, and kept the option to mail in the ballots.

The appellate court did not see any burden that the governor’s proclamations were placing on the voters.

As noted, Gov. Abbott has taken unprecedented steps in the wake of COVID-19 to expand voting opportunities generally, and mail-in voting options specifically. In taking these (and other) pandemic-driven actions, the governor has invoked his broad emergency powers under the Texas Disaster Act….

Neither the United States nor Texas constitution includes a pandemic exception…. All public servants, no matter how well-intentioned, must heed federal and state constitutional constraints.

            Texans should be grateful for judges that can read the national and state constitutions and can interpret them as written. We need more judges just like them!