Ken Starr: ‘You Cannot Have Changes in Election Laws After the Fact’

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Starr began by reuniting the history of voting rights in the United States, celebrating the expansion of the franchise and noting that “underlying this story of ever expanding voting rights was an assumption that is one of integrity in the process.”

It was difficult, he said, to ensure honesty and integrity in elections because of “decentralization,” since states run their own voting process. The safeguards against abuse, he said, are the “guardrails” established by the text of the Constitution itself.

Recent changes in several states, carried out either by elected officials or by the state courts (or by both, in some states) had violated the Constitution — in particular the Equal Protection Clause, he said, which was the issue in Bush v. Gore (2000).

He said:

I think that Bush v. Gore stands for this basic proposition, you cannot have changes in election laws after the fact, you must in fact, be faithful to what the state legislature has done. That’s also what Justice [Samuel] Alito said in his opinion, I think essentially condemning, but certainly identifying as a huge issue, what had happened in Pennsylvania. I think all-in-all Bush v. Gore is just a reiteration of our constitutional structure.

Sen. Rand Paul (R-KY), responding to him, expressed the view that we need to continue to have decentralized elections, but that state legislatures needed to explain what they would do to make sure their elections obeyed the Constitution.

Sen. Paul also expressed disappointment that the courts had generally avoided intervening where there had been allegations of abuse in in the 2000 election: “The courts never looked at the facts. The courts don’t like elections, hence they stayed out of it by finding an excuse, standing or otherwise, to stay out of it. But the fraud happened, the election in many ways was stolen. And the only way it will be fixed is by, in the future, reinforcing the laws.”

Starr, whose investigations as Independent Counsel led to the impeachment of President Bill Clinton, defended President Donald Trump in his impeachment trial earlier this year.