The Supreme Court of the United States (SCOTUS) currently has a unique opportunity to reinstill confidence in America’s elections based on two cases that may affect the impact that non-legislative officials can have on election administration and integrity. At issue is whether government officials can act outside the authorization granted to them by constitutional or legislative approval, and if the media can ever be held accountable for publishing disinformation.
The first case, Loper Bright Enterprises v. Raimondo, addresses the deference given to executive branch officials who act to fill statutory gaps. Drawing a comparison to elections, some election officials have asserted regulatory authority to allow votes “outside the law" to be counted, which could affect election outcomes.
In one example, the Wisconsin Supreme Court in Teigan v. Wisconsin Election Commission, et al., found that the Election Commission exceeded its “carefully regulated” executive authority by allowing ballot drop boxes not authorized by law in the 2020 election. In another example, the Pennsylvania Supreme Court in Ball v. Chapman found that the Secretary of State’s relaxation of absentee voting rules in 2022, based on a 2020 covid-policy change, was beyond executive authority and contrary to law.
As in sports, if one changes the rules during a game, their chances of winning increase. When an executive branch official changes rules and processes during an election, it may very well tilt the table in favor of one side over the other. Thus, the body of laws crafted by the proper authority, the state legislature, is diminished.
The second case, Blankenship v. NBCUniversal, LLC, et al., if certiorari is granted, would revisit the seminal decision in New York Times Co. v. Sullivan that established a high bar for proving “actual malice” in defamation suits brought by public figures. The Sullivan standard leaves political candidates with little recourse when the media publishes false or inaccurate information. Situations where false information is distributed could be very impactful, especially if published on the eve of an election.
Several studies have shown that voters’ choices can effectively be influenced by last-minute mis- and disinformation, and it is extremely difficult and expensive for candidates to combat false, negative information injected into the political realm just before ballots are cast.
These cases pose the question of the proper balance between the separation of powers, freedoms of the press and speech under the First Amendment, and the right to hold media accountable under the Seventh Amendment. If SCOTUS revisits the deference afforded to executive agency rule-making authority, and takes up the Blankenship appeal, it could reaffirm the critical role that state legislatures hold in crafting how elections are run. It could also give public figures affected by mis- and disinformation campaigns an actual opportunity to present their case to a jury; both of which could positively impact the integrity of our elections.
To learn more about these important cases pending before SCOTUS, as well as their potential impacts on our elections, read my White Paper.
Mac Warner is currently serving his second term as West Virginia's 30th Secretary of State. Prior to becoming Secretary of State in 2017, Secretary Warner served 23 years on four different continents in the United States Army. He is a graduate of the United States Military Academy at West Point, earned a Juris Doctor degree from the West Virginia University College of Law, and Master of Law degrees from the University of Virginia School of Law and the Army's Judge Advocate General's Legal Center and School.