Tuesday, May 5, 2020

The Primary Elections to Occur in Indiana on May 5th, 2020

I have already mentioned that Indiana Governor Eric Holcomb's Executive Order 20-07 not only lacks the authority to reschedule Indiana's 2020 primaries (it is not enough for something to be "a good idea" to make it legal) due to the familiar way in which the Indiana Constitution distributes the powers of government -- by vesting the legislative power in the Indiana General Assembly -- but is also expressly prohibited by Article 1, Section 26 of the Indiana Constitution.  I had hoped that the Governor would call a special session of the General Assembly before the (primary) Election Day established by law arrived.  This would have allowed the legislature to legitimately do the very thing that the Governor (with good reason) wanted done: reschedule the primary elections.

However, May 5th has arrived -- the date appointed by Indiana law for the 2020 primary elections -- and I am confident that there will not be elections in Indiana, today.  The Governor still can and should call the special session, because now that he has scheduled new primary elections for June 2nd, it would be desirable to make those elections legal.  The power to do that remains in the hands of the General Assembly alone, which will not have the opportunity to use that power by June without a special session.  No one can compel the Governor to call a special session against his will, but he should face the reality of what declining to do so will be.

Indiana's primary elections owe their form, their effects, and their very existence to legislation enacted by the General Assembly, which is collected into the Indiana Code.  Subject to the Indiana Constitution, these are the laws of our state, which control (among other things) when, where, how (to a surprising degree of detail), and for which elective offices primary elections are to be held, in addition to determining which political parties must submit to primary elections to choose their nominees for offices for the general election (as well as certain officeholders within those parties themselves, for their internal governance) and who may vote on a particular party's choice of nominees ... among other things.

These laws require, but also authorize, Indiana's primary elections to be held on the first Tuesday after the first Monday in May -- today.  Now, obviously, we are about to disregard the law's requirement that we hold primary elections today, which is a problem, but it is happening.  I do not find that surprising.  After all, whenever the claim is made that something (whatever it may be) is "the law" (regardless of how spurious the claim might be), if enough people and enough of the right people treat it as though it were the law, the effect of it in practice will very closely resemble authentic law.

Some people, I realize, do not consider this to be a problem -- either this or any of the numerous and far more objectionable other examples from throughout the United States (in just the past few months alone) of governments acting in direct defiance of their own laws (and of justice as well).  Nonetheless, I suspect that a fair number of those people will have reservations about the plan to hold substitute primary elections in June, in contravention of the very laws to which the primary elections owe the entirety of their existence and effect.  Such people will not necessarily have any personal objection to holding an election on the wrong date, even though the "right" date is set by state law; they personally may consider that a mere technicality.  Their discomfort with the plan would rather be with the thought of conducting our primary elections with a legal defect that we already know about and that the General Assembly (in a special session prior to the elections) can remove.  They are aware that once these elections have been held, the candidates who will have lost will have an enhanced incentive to contest the elections' legitimacy.  These candidates would not even have to prevail in their challenges in order to produce some amount of uncertainty as to the outcomes of these primaries, and they would easily make themselves an unwelcome new source of confusion, distraction, division, and chaos this year.  Is that not an outcome that we would like to avoid?

Governor, having a special session of the General Assembly right now may be a little inconvenient, but this is what its members were elected to do.  (They asked voters to elect them for this.)  The General Assembly alone possesses the legislative power of our state, and if you give the General Assembly the opportunity to exercise that power as intended, it will be able to many things that a governor lawfully cannot.  It is the right way to do this, and it is the right thing to do.

Renewing and preserving a government of laws for the State of Indiana will be worth the effort it requires.  Governor, please call the special session with no avoidable delay.

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