Republicans split on giving bureaucrats unchecked power
As a proponent of limited government, I naturally get annoyed when unelected bureaucrats rule by fiat, ignore long standing laws and trample the Constitution.
For years, federal regulators have done just this. However, a U.S. Supreme Court ruling recently curtailed their ability to do so by striking down the administrative law doctrine known as Chevron Deference, which automatically deferred to agency officials’ interpretations of law. Republicans roundly cheered its downfall.
Pencil pushers will continue finding ways to act as kings, but this is not limited to the federal government. Georgia has its own problem with unelected bureaucrats gone wild. “A controversial rule passed by the Georgia State Election Board [last month] will require all of the state’s voting precincts to hand-count ballots and ensure the tallies match machine counts before their deadline to certify election results,” reported USA Today.
The primary problem is that the State Election Board does not appear to have the authority to institute such a rule, but a host of Republicans cheered its passage anyway, which ought to create some cognitive dissonance. Thankfully, one Georgian decided to challenge the rule—former Republican state representative and my longtime friend Scot Turner. On behalf of this organization, Eternal Vigilance, Turner filed suit against the State Elections Board in an act that should garner broad bipartisan support.
For him, the decision to challenge the elections board was easy. “As a former legislator and devout conservative who was heavily involved in creation of our current election laws, I became increasingly concerned with the [Georgia State Election Board] overstepping their authority and straying into making new law,” Turner told me. “I recognized that one day Republicans may not be in control of the [election board] and therefore we needed to act now to prevent their unchecked power by Democrats in the future.”
More than anything, Turner asserted, his case is “about reestablishing the separation of powers and preventing an executive branch board from behaving like legislators.” The courts appear to agree with Turner. Fulton County Superior Court Judge Thomas A. Cox Jr. struck down the hand-counting rule. In his ruling, he stated, “An administrative agency can only act to implement existing statutory schemes; they hold no authority to create new requirements or otherwise expand their own authority.”
This is a success for all Georgians too. “Our victory,” Turner said, “removed the illusion of discretion these rules created, and we have made it crystal clear that the process for tabulating and certifying the vote should follow what our elected representatives have said it should be, not an unelected board.”
To be absolutely clear, this matter is not about the merits or drawbacks of hand-counting ballots; it is about whether bureaucrats should be allowed to rule with scepter in hand, although hand-counting ballots presents a host of problems. It is painfully slow—meaning it would take ages to determine who won or lost an election—and would probably give conspiracy theorists time and fodder to question the legitimacy of fair elections.
Even though this appears to be a clear-cut case of bureaucrats acting far beyond their remit, the GOP vowed to appeal the decision. National GOP chairman Michael Whatley even called it, “the very worst of judicial activism,” which is a curious response. After all, it serves as a check on unaccountable bureaucrats run amok, and some may call the State Elections Board’s actions “activism.”
The Georgia Supreme Court likewise seems skeptical of the board’s rule and denied the GOP a quick appeal. The case isn’t settled just yet, but Turner seems optimistic. “If we are ultimately successful we will have depoliticized the [election board] and local election board and the certification process,” Turner told me. “The vote count can return to just being the number of votes cast and voters can rest easier knowing that the law will be created only by their elected members of the General Assembly, not unelected appointees who are not accountable to voters.”
Republicans have traditionally disdained the uncontrolled growth of agency power. They applauded Chevron Deference’s downfall, but strangely feel differently about the State Elections Board—presumably because they want ballots to be hand-counted so badly that they don’t care how it is achieved.
Republicans have long claimed to be the party of the Constitution and law and order. Regardless of whether you support the hand-counting of ballots, I think we can agree that it’s hard for the GOP to claim the aforementioned mantle if it is willing to accomplish its objectives in spite of its principles.