"Encomium" is a good word, thanks for that. And always appreciate your insights
> Well, as a first cut, the federal statute can’t possibly mean that the electors are literally appointed on “election day.” The federal statute isn’t saying that, at 11:59 PM, even if the vote-counters are halfway through the count, state officials have to torch the uncounted ballots and hastily appoint electors corresponding to whichever presidential candidate happens to be in the lead. Inevitably, it will take election officials a few days or weeks to count up all the votes and figure out who won.
This bit confuses me. Why shouldn't we take 3 U.S.C. § 1 to mean what it plainly says? To me, the text combined with the practicalities of voting would seem to imply that states need to open voting and start counting before election day, so that they can finish on election day, so that they can appoint electors "on election day".
Obviously no state does it like that — but the meaning of "shall be appointed ... on Election Day" is unambiguous. What's the legal argument against?
Perhaps "appointed" carried a different connotation when this statute was originally enacted in 1845? If not I think I'd say that longstanding tradition is dispositive of meaning.
The problem with the horseshoe analogy is that Reinhardt was at the left wing of a concededly liberal circuit, whereas Ho, Duncan and Oldham are much closer to the center of the 5th.
To me the scary thing about this ruling is that now someone can go into court in Texas and under the aegis of this holding get the counting of late-arriving ballots halted.
I appreciate the thoughtful, clear writing, thank you. I'm curious about the very end of the piece though. You posit a theoretical argument to the opposite effect coming from the old activist 9th circuit. Their conclusion being that every vote postmarked by election day must be counted and state laws to the contrary are invalid.
I'm having difficulty understanding why you think that conclusion would be equivalent (though opposite in effect) of the one from the 5th. The franchise is guaranteed every individual not only by federal law but by the Constitution. There is certainly historical support for state laws regulating time and place of exercising the franchise but if a citizen follows all the rules (they are not barred from voting, they used an official ballot, and they recorded and submitted their vote in an approved way) then there must be a high bar for a state government to say "well, yes, you didn't do anything wrong but we're still not going to count your vote".
A voter does not have control over their ballot once they hand it off. Does a state have a compelling interest in requiring all ballots, regardless of circumstances beyond knowledge it control of the voter, be received by a certain date? I'd say so, given the need to finalize and certify the election. Does it have to be election day? Obviously not. Does it have to be a week after? Maybe. A month? Certainly. That possible range of outcomes that would ensure an orderly administration argues for the interest of the state to be weighed lower than the interest of the individual who is exercising a core right.
Maybe the argument from the 9th would fail but it seems much less facile and activist than the argument from the 5th.
Such a rule is sensible as a policy matter but I don’t think it can be extracted from the words “Election Day.” Most states historically haven’t accepted ballots received after Election Day; I don’t think they have all been violating federal law all this time.
The counter argument is that historically, state and federal law routinely ignored the rights of disfavored individuals and the courts followed suit. Just because there is a history of being awful and getting away with something does not make it right or in accord with a reasonable understanding of the rights of individuals under the Constitution. See, for example, Roe v Wade.
My question, though, wasn't whether it would be a correct reading of the Constitution. I wanted to understand why you saw it as an equally self serving view as the 5th. It feels like false equivalency to me. Maybe not a correct reading but a much more defensible one.
I guess I'd agree that if a judge is going to lawlessly impose a policy-driven result, it's better if it's a policy you support instead of one you oppose. I don't think that really makes it "defensible" in any meaningful way.
I think you ignore compelling interest. There is a compelling interest for individuals to have their votes counted. States lack a compelling interest in being able to set arbitrary rules on timing so long as administration of elections in a predictable and fair fashion are enabled. Legal tradition in the US holds that in a conflict of interests, if there is no overwhelming compelling interest of the State, then the rights of the individual should be held and protected by the court both from the law but also in the absence of it.
Any thoughts on the odds of a Monday S.Ct. stay of the 5th Cir order?
This seems to present a pretty glaring Purcell principle issue: there’s a last-minute, court-ordered change to long-existing state law, and one that upsets well-established voter expectations with the very real possibility of disenfranchising voters.
Why can't we just agree to ignore any rational analysis about 5th Circuit decisions, admit that they are politically driven with little basis in statutory or Constitutional law and go on about our business.
Because Adam's business, at least, is to grapple with the state of appellate law and the appellate decisions that are out there. Unless he wants to give up his career and become a pastry chef (great job, but very early hours, btw), he's going to have to deal with the Fifth Circuit as it currently exists. The way he's chosen to highlight and frame their decisions seems just about the best thing he could do with his situation, including if there's to be some hope of someday returning that court to making law-based decisions
"Encomium" is a good word, thanks for that. And always appreciate your insights
> Well, as a first cut, the federal statute can’t possibly mean that the electors are literally appointed on “election day.” The federal statute isn’t saying that, at 11:59 PM, even if the vote-counters are halfway through the count, state officials have to torch the uncounted ballots and hastily appoint electors corresponding to whichever presidential candidate happens to be in the lead. Inevitably, it will take election officials a few days or weeks to count up all the votes and figure out who won.
This bit confuses me. Why shouldn't we take 3 U.S.C. § 1 to mean what it plainly says? To me, the text combined with the practicalities of voting would seem to imply that states need to open voting and start counting before election day, so that they can finish on election day, so that they can appoint electors "on election day".
Obviously no state does it like that — but the meaning of "shall be appointed ... on Election Day" is unambiguous. What's the legal argument against?
Perhaps "appointed" carried a different connotation when this statute was originally enacted in 1845? If not I think I'd say that longstanding tradition is dispositive of meaning.
The problem with the horseshoe analogy is that Reinhardt was at the left wing of a concededly liberal circuit, whereas Ho, Duncan and Oldham are much closer to the center of the 5th.
To me the scary thing about this ruling is that now someone can go into court in Texas and under the aegis of this holding get the counting of late-arriving ballots halted.
I appreciate the thoughtful, clear writing, thank you. I'm curious about the very end of the piece though. You posit a theoretical argument to the opposite effect coming from the old activist 9th circuit. Their conclusion being that every vote postmarked by election day must be counted and state laws to the contrary are invalid.
I'm having difficulty understanding why you think that conclusion would be equivalent (though opposite in effect) of the one from the 5th. The franchise is guaranteed every individual not only by federal law but by the Constitution. There is certainly historical support for state laws regulating time and place of exercising the franchise but if a citizen follows all the rules (they are not barred from voting, they used an official ballot, and they recorded and submitted their vote in an approved way) then there must be a high bar for a state government to say "well, yes, you didn't do anything wrong but we're still not going to count your vote".
A voter does not have control over their ballot once they hand it off. Does a state have a compelling interest in requiring all ballots, regardless of circumstances beyond knowledge it control of the voter, be received by a certain date? I'd say so, given the need to finalize and certify the election. Does it have to be election day? Obviously not. Does it have to be a week after? Maybe. A month? Certainly. That possible range of outcomes that would ensure an orderly administration argues for the interest of the state to be weighed lower than the interest of the individual who is exercising a core right.
Maybe the argument from the 9th would fail but it seems much less facile and activist than the argument from the 5th.
Such a rule is sensible as a policy matter but I don’t think it can be extracted from the words “Election Day.” Most states historically haven’t accepted ballots received after Election Day; I don’t think they have all been violating federal law all this time.
The counter argument is that historically, state and federal law routinely ignored the rights of disfavored individuals and the courts followed suit. Just because there is a history of being awful and getting away with something does not make it right or in accord with a reasonable understanding of the rights of individuals under the Constitution. See, for example, Roe v Wade.
My question, though, wasn't whether it would be a correct reading of the Constitution. I wanted to understand why you saw it as an equally self serving view as the 5th. It feels like false equivalency to me. Maybe not a correct reading but a much more defensible one.
I guess I'd agree that if a judge is going to lawlessly impose a policy-driven result, it's better if it's a policy you support instead of one you oppose. I don't think that really makes it "defensible" in any meaningful way.
I think you ignore compelling interest. There is a compelling interest for individuals to have their votes counted. States lack a compelling interest in being able to set arbitrary rules on timing so long as administration of elections in a predictable and fair fashion are enabled. Legal tradition in the US holds that in a conflict of interests, if there is no overwhelming compelling interest of the State, then the rights of the individual should be held and protected by the court both from the law but also in the absence of it.
Any thoughts on the odds of a Monday S.Ct. stay of the 5th Cir order?
This seems to present a pretty glaring Purcell principle issue: there’s a last-minute, court-ordered change to long-existing state law, and one that upsets well-established voter expectations with the very real possibility of disenfranchising voters.
The court indicated, but didn’t definitively decide, that its ruling wouldn’t apply to this election under Purcell.
Why can't we just agree to ignore any rational analysis about 5th Circuit decisions, admit that they are politically driven with little basis in statutory or Constitutional law and go on about our business.
Because Adam's business, at least, is to grapple with the state of appellate law and the appellate decisions that are out there. Unless he wants to give up his career and become a pastry chef (great job, but very early hours, btw), he's going to have to deal with the Fifth Circuit as it currently exists. The way he's chosen to highlight and frame their decisions seems just about the best thing he could do with his situation, including if there's to be some hope of someday returning that court to making law-based decisions