Wednesday, April 29, 2020

It Is Still Possible To Reschedule Indiana's 2020 Primary Elections Using Lawful Means

Less time remains for us to act than when I mentioned this before.

A little over a month ago, Governor Eric Holcomb of Indiana issued "Executive Order 20-07" for the purpose of rescheduling Indiana's 2020 primary elections.  This was one of the many orders that the Governor has issued in order to compensate for the drastically altered circumstances of the present pandemic.

Considered purely as a matter of policy, it was and it remains a good idea for Indiana to hold these elections on a later date than that which is set by state law.  Indiana law establishes May 5th* as the date of Indiana's 2020 primary elections.  Executive Order 20-07 affects to suspend this legal provision and replace it with another which would move the election from May 5th to June 2nd.

Unfortunately, this is inadequate to legitimately cancel the election scheduled for May 5th and authorize one to be held on June 2nd in its place.  I do not blame Governor Holcomb for trusting that Indiana's "Emergency Management and Disaster Law", Indiana Code chapter 10-14-3, would limit its grants of power to the Governor to grants of power that the Governor is constitutionally capable of possessing.  Why wouldn't it limit itself that way?  It should.  Regrettably, IC 10-14-3 is a mess (in addition to being an excellent demonstration of the kinds of laws servile-minded people will make when they get the chance).  That chapter claims to grant the Governor an array of extraordinary powers during a "State of Disaster Emergency" (which it authorizes the Governor to declare), including a power to suspend certain types of laws.  The suspending power that it pretends to grant is both hostile to our very form of government and directly prohibited by Section 26 of the Indiana Bill of Rights.  (I question whether the kind of statutes that it supposedly allows the Governor to suspend would actually include one determining when an election is to be held, but there are bigger issues that deserve our attention, right now.)

All of us are or ought to be aware of the pressure that Governor Holcomb is under, right now.  The present is a fairly unfamiliar, unusually high-stakes situation, and the Governor happens to be responsible for making a great number of decisions respecting which every available option is profoundly objectionable -- even when it is clear which options are right and which are wrong.  I consequently find it impossible to become angry with him for innocently exercising a power that he no doubt believed he had, and which I assume unknown advisers assured him that he had, to achieve something that clearly was needed: rescheduling Indiana's 2020 primaries.

However, a lawful way to reschedule the primaries exists.  The Governor can call a special session of the Indiana General Assembly (Article 4, Section 9 of the Indiana Constitution).  In addition to giving him the power to call special sessions, the Indiana Constitution (Article 5, Section 20) explicitly empowers the Governor to convene the General Assembly in a safe place if an infectious disease makes it dangerous to meet in the usual location -- a provision that reads as though it were designed for this very moment.  Once it is convened in a suitably spacious, well-ventilated meeting place, the General Assembly can use the legislative power to modify the law as needed -- the right and legitimate way.

Some would question the need to do this, as Executive Order 20-07 has almost certainly already ensured that there will, in fact, not be elections in Indiana on May 5th, 2020.  They may also question what we would gain by obtaining legal authorization for the primaries to be held on June 2nd, given that, strictly speaking, it will be possible to hold elections on that date whether the laws of Indiana sanction it or not.  Even if obtaining legality for the rescheduling of an election would not ordinarily be a sufficiently compelling reason for the state legislature to meet -- though I must insist that it would be and is -- I ask each of us, and all of us, to recognize its special importance at this moment.

Indiana's government is not alone (and was not the first) among the state governments in toppling law and justice when these might have stood in the way of contemplated measures to combat COVID-19.  Americans throughout the United States are now accustomed (whether from having been mere witnesses or actual subjects) to the fact of entire states instituting -- indefinitely -- a general suspension of liberty.  Nothing less than these words could satisfactorily characterize the general form of what has been done, though the suspension may have come with many provisos.  Subjection has become commonplace, but in how many of our states have these measures of such magnitude been carried out though nothing better than executive imitations of legislation?  In how many states has it been thought necessary even to seek the consent of the elected representatives of the governed?  We have good reason to doubt that we currently live under governments of law, much less of justice.  Indiana deserves better, as does all of America.

I believe that the Governor issued Executive Order 20-07 innocently, believing this executive order for the delay of Indiana's 2020 primary elections to be no less legal than its object was necessary.  But now that the legal inadequacy of the executive order has been brought to light, and the remedy has been identified and requested, the General Assembly must be summoned and called upon to exercise the legislative powers that a Governor may not.

It is true that, in a short-sighted kind of way, it would be more convenient to continue to rely on the vaunted authority of Executive Order 20-07 than to call a special session of the Indiana General Assembly.  However, apart from the lawlessness of that course of action (which I see as a very considerable argument against it), this is a moment when Hoosiers and Americans at large need to see an American government choose to follow the law for the simple but invaluable reason: that there remains at least one government which accepts that it is bound by the law.  We cannot control the decisions of other states, but we must decide that this is the type of government that we will have in our own.

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