After the Republicans in the Statehouse passed House Bill 1242, changing the election law in order to avoid the consequences of having run an ineligible candidate, my husband shook his head. “It’s enough to make you ashamed of ever having been a Republican.” This from a man who worked for the GOP for over fifty years–working on campaigns, working at the polls, driving people to vote, and serving in a Republican administration.
We have both bemoaned the radicalization of the party we used to call ours: the mean-spiritedness, the shortsighted focus on tax caps at the expense of public goods, the homophobia and the thinly veiled racism that emerged in the wake of Obama’s election. But HB 1242 is nothing less than an attack on the rule of law.
John Adams famously said that our constitution established the rule of law, not the rule of men. The Founders gave us limited government. That didn’t mean that the size of government was to be limited, as many seem to think. It meant that the same rules have to apply to everyone, that there are limits to the ways in which official power can be used.
Scholars identify eight elements of the rule of law:
- Laws are necessary, and must apply to all–including government officials.
- Laws must be published.
- Laws must be prospective in nature so that the effect of the law may only take place after the law has passed.
- Laws must be reasonably clear and specific, in order to avoid arbitrary enforcement.
- Laws must avoid contradictions.
- Laws cannot require people to do impossible things.
- Law must stay sufficiently constant through time to allow rules to be understood; at the same time, the legal system should allow for timely revisions when the reasons for the law have changed.
- Official action should be consistent with the declared rule.
Our sense of fundamental fairness is offended if someone is punished for violating a rule that was passed only after he acted. We would be outraged if a person who violated an existing law managed to get it changed so that he escaped punishment. We might not be able to point to the precise element of the rule of law that had been violated in such cases, but we’d know instinctively that it was wrong.
This over-reach by the Indiana GOP has generated a petition drive, asking Governor Daniels to veto the measure. I don’t hold out much hope, but I signed the petition, and I hope many others will as well.
If the legislature ultimately decides that current laws governing electoral vacancies should be changed, fine. Those new rules can be applied prospectively, to future cases. Changing the rules when they fail to favor you, so as to escape the consequences of your own misbehavior, isn’t just unfair. It isn’t just contrary to the rule of law.
It is unAmerican.