Voting while dead

There have been a lot of strange challenges to elections and voting procedures lately and one of the oddest — and perhaps most thought-provoking — may have been buried in a lengthy ruling from the Massachusetts Supreme Court in a case brought by Republicans challenging expansion of early voting options.

One of the Republican arguments was that the new law in Massachusetts “arbitrarily and irrationally counts the votes of people who lawfully cast their ballots during the early voting period but die before Election Day, which the plaintiffs characterize as allowing ‘dead people’ to vote.”

The court dispensed with this in a couple of sentences — the voters weren’t dead when they voted and election officials would have to know who died before the election.

It’s definitely something to think about, though. Do dead people deserve representation?

Imagine if instead of recounts, states had to check to see who was still alive after elections. Think of the impact on life-support decisions. Think of the potential for hit squads determined to overturn an election result.

No, actually, don’t think about that last one. Please don’t.

What if a voter doesn’t vote early but dies after Election Day? That’s another dead person getting representation they don’t need.

What about people who reach voting age after an election? Are they being deprived of a constitutional right to representation before the next election?

And why aren’t Republican originalists more respectful of the opinions the dead? Think about it.

Trying times. If at first you don’t succeed, consider not trying again.

I know this runs counter to the sort of advice you optimists out there like to hear, so let me phrase this another way: If you bang you head on a wall and it hurts, don’t keep banging your head on the wall.

Case in point: the litigation adventures of a lawyer named Larry Klayman, founder of Judicial Watch.

Judicial Watch, if you don’t know, is a conservative entity — I use the word “entity” because you never know these days whether any so-called organization has more than one or two members. It files lots of lawsuits against anything that seems progressive. If you see a Judicial Watch lawsuit and you’re of the left-wing persuasion, you cringe. You can decide for yourself whether that’s a good thing or not.

If you search for “Judicial Watch” as the plaintiff’s lawyer on the Courthouse News search page, you’ll get 553 results going back to 2003. The CNS summary of the oldest suit on the list in 2003 begins with this: “Plaintiff, second only to U.S. government as the entity with the largest number of cases pending before the federal courts of the District of Columbia….”

But, as we’ve noted before, there’s something that often happens to organizations run by lawyers — the lawyers end up suing each other. It’s probably genetic — they can’t help themselves.

Klayman, for example, as described in a ruling the other day by a D.C. Circuit U.S. Court of Appeals panel, left Judicial Watch in 2003 and has been suing it ever since. Judicial Watch, naturally, has filed counterclaims. After Klayman lost at trial and on appeal, he sued the judges for ruling against him and denying his appeals.

And then he appealed when that suit was dismissed and asked that every judge on the D.C. Circuit be disqualified because they might be biased since he was suing D.C. judges.

The panel responded with this: “Klayman cites no authority for the proposition that recusal or disqualification of all judges in a judicial district is a basis for transfer of venue.”

Well, of course not. Judges are going to be biased in favor of judges.

Clearly, Klayman should have argued that all judges are going to be biased if you sue judges, so every judge everywhere should be disqualified.

Or maybe he should stop banging his head against that wall.

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