Being a Republican means different things to different people. However, even in today’s polarized world, there are a handful of things that tie virtually all Republicans together, such as a belief in a strong national defense, low taxes, personal freedom and limited government. One of the most important bedrocks of our party is this: judges and other elected officials should conservatively interpret and apply our laws, rather than stretching them far outside of their original intent to achieve policy goals.
Credit: bandres@ajc.com
Credit: bandres@ajc.com
For much of the 20th century, liberal activists attacked our judicial system with the singular goal of using judges and courts (and often the regulatory process) to put new policies in place that were far outside the intent of those laws. These activists found the legislative process outlined in our Constitution frustrating and slow, and often succeeded in using activist judges to make an end run around the law.
In response, conservatives began pushing back and fighting to protect the integrity of the laws. Often, this meant electing Attorneys General, judges, and legislators who took the law and Constitution seriously, standing behind them when the Left attacked them for doing so.
If we value our standing as a national political party and care about this core principle, we are obligated to follow it consistently both when it protects our political goals and when it thwarts them. This is exactly what Gov. Brian Kemp is doing in the aftermath of our state’s elections process.
Generally, there have been two areas where some have pushed our governor to go far beyond the bounds of what Georgia’s Constitution and laws allow. The first is a request that he call the legislature back into session, and retroactively change our laws so that enough votes for the Democratic nominee are not counted and the Republican nominee can win. This is plainly unconstitutional, would have no effect, and would simply obligate the state to spend significant sums of money defending a law that would not be allowed to ever take effect because it would get an immediate stay.
The second request has been that the governor leverage the Electoral College to reverse the election outcome by choosing a different slate of Electors than those chosen by the voters. Here again, state law provides no path to do this. Georgia law explicitly states that our Electors will be chosen by popular vote. If the General Assembly wanted to change this procedure, it has the power to do so, but can only Constitutionally exercise that power for future elections. This path cannot be used to reverse a past election.
Elections are never perfect in Georgia or anywhere else. As Republicans, we must protect the integrity of the system by relentlessly investigating fraud and making sure that our laws are updated so that the voting process is absolutely secure. We should put our focus in these areas, because they can lead to actual outcomes.
Most importantly, however, we must resist the temptation to do the same thing we have fought against for years. We should never push the courts and legislature to act beyond the bounds of our laws and Constitution to give us a political outcome that we want. We must remember that the principle at stake here matters far more than any momentary political gain. And, we can rest assured that if we succeeded in overturning elections via the judicial and legislative process, our opponents on the left will eagerly use that weapon against us.
Imagine a Democratic state legislature or a Democrat judge contorting the law in 2016 to hand the presidency to Hillary Clinton. Conservatives would have been rightly outraged and our Republic would have been irrevocably damaged. If we take this type of action now, this is exactly what would happen in the future. We must hold firm to our principles, even when they lead to a different political outcome than one would prefer.
Sam Olens, a Republican, was elected as attorney general of Georgia in 2010 and 2014. He currently practices law in Atlanta at Dentons.
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