SCOTUS Term 25-26

[Aardvark86]

...Also in late night action, scotus stayed a ny state trial court decision that would have compelled an independent redistricting commission to redraw a Ny congressional district so as to (in Alito's words) ensure that minorities could elect the candidate of their choice.

Soto not happy, again based on use of emergency docket.

Looks like I have some reading for the evening, as well as an update on the 2A case,,,

 

[FLaw47]

That makes a certain amount of sense given the pendency of the case on this issue, assuming we’re talking about a stay. That said I sorta figured the final opinion would come until later in the term, and the ca case would then likely be remanded to process consistent with the wv (?) case

Edit: just pulled the per curiam opinion. Way more than the above, and will need to take a harder look. This opinion is a bfd

Help me understand the steelman version of the "free exercise of religion" concerns with the California ruling. So far as I know, there's not actually any holy text that speaks out on trans issues in any sort of a way that's consistent with how people actually live their lives (e.g. people do all sorts of stuff to improve their bodies). What's the theoretical limit on what counts as "free exercise of religion" if we're allowed to just make up sincerely held beliefs?

 

[Aardvark86]

Help me understand the steelman version of the "free exercise of religion" concerns with the California ruling. So far as I know, there's not actually any holy text that speaks out on trans issues in any sort of a way that's consistent with how people actually live their lives (e.g. people do all sorts of stuff to improve their bodies). What's the theoretical limit on what counts as "free exercise of religion" if we're allowed to just make up sincerely held beliefs?

While the opinion has no information about the particular beliefs of the Doe parents in the case (for all we know, they might be Muslims), I think you're being a bit too narrowly focused in considering what is a religious belief. Thinking about this through my own prism of Christianity though, you are certainly not alone in seeming to default to "holy texts" when considering what a "religious belief" is, but I suppose that if one were to take such a "sola scriptura" approach as is more common within Protestantism, you'd probably point to something like Genesis 1:27. But recognize that in other Christian traditions like Catholicism, "doctrine" is not merely textually driven, it may also be developed through "tradition" (which is in itself a term of art that can include a process of thinking about a theological question for a couple of hundred years before deciding it, as well as the concept of "lex orandi, lex credendi" - the way of worship reflects what is believed). And while my facility with Islam is admittedly limited, it's my sense that a concept like that exists there as well. I suppose if nothing else, it does sort of reinforce that the phrase you invoke about "sincerely held religious beliefs" does appropriately get a wide berth.

From my brief scan of the opinion last night, FWIW, it seemed to me that a much bigger focus of the court's decision was perhaps less the 'free exercise' claim and more of a "substantive due process" right of parents to be advised of, and have first say about, health issues affecting their minor children.

 

[FLaw47]

While the opinion has no information about the particular beliefs of the Doe parents in the case (for all we know, they might be Muslims), I think you're being a bit too narrowly focused in considering what is a religious belief. Thinking about this through my own prism of Christianity though, you are certainly not alone in seeming to default to "holy texts" when considering what a "religious belief" is, but I suppose that if one were to take such a "sola scriptura" approach as is more common within Protestantism, you'd probably point to something like Genesis 1:27. But recognize that in other Christian traditions like Catholicism, "doctrine" is not merely textually driven, it may also be developed through "tradition" (which is in itself a term of art that can include a process of thinking about a theological question for a couple of hundred years before deciding it, as well as the concept of "lex orandi, lex credendi" - the way of worship reflects what is believed). And while my facility with Islam is admittedly limited, it's my sense that a concept like that exists there as well. I suppose if nothing else, it does sort of reinforce that the phrase you invoke about "sincerely held religious beliefs" does appropriately get a wide berth.

From my brief scan of the opinion last night, FWIW, it seemed to me that a much bigger focus of the court's decision was perhaps less the 'free exercise' claim and more of a "substantive due process" right of parents to be advised of, and have first say about, health issues affecting their minor children.

Ok fair enough. Can I not then demand that schools inform me of any sort of political opinions my children might express in school? I've heard numerous people on the board sincerely refer to my political leanings as a disease and I'm not sure why I can't gin up some religion around that (arguably the dogma that is expressed could reasonably be described as religious based on it's lack of reliance on facts).

I understand that you're not specifically defending any of this but I'm asking where you think the reasonable line would be drawn? I fully acknowledge the fallacious tendencies of the "slippery slope" but if there's anywhere that the slippery slope isn't a fallacy, it's with precedent.

Cards on the table, I think our country has taken the completely wrong turn on what constitutes "Free Exercise" but that's likely a minority opinion on this board (or at least it's a minority opinion when it comes to the Free Exercise of evangelical Christianity. All other faiths seem to receive much more scrutiny).

 

[fatpiggy]

Ok fair enough. Can I not then demand that schools inform me of any sort of political opinions my children might express in school? I've heard numerous people on the board sincerely refer to my political leanings as a disease and I'm not sure why I can't gin up some religion around that (arguably the dogma that is expressed could reasonably be described as religious based on it's lack of reliance on facts).

I understand that you're not specifically defending any of this but I'm asking where you think the reasonable line would be drawn? I fully acknowledge the fallacious tendencies of the "slippery slope" but if there's anywhere that the slippery slope isn't a fallacy, it's with precedent.

Cards on the table, I think our country has taken the completely wrong turn on what constitutes "Free Exercise" but that's likely a minority opinion on this board (or at least it's a minority opinion when it comes to the Free Exercise of evangelical Christianity. All other faiths seem to receive much more scrutiny).

Transing isn't a political issue, it is a medical issue. That's not very close to the slippery slope either, imo.

 

[Aardvark86]

Ok fair enough. Can I not then demand that schools inform me of any sort of political opinions my children might express in school? I've heard numerous people on the board sincerely refer to my political leanings as a disease and I'm not sure why I can't gin up some religion around that (arguably the dogma that is expressed could reasonably be described as religious based on it's lack of reliance on facts).

I understand that you're not specifically defending any of this but I'm asking where you think the reasonable line would be drawn? I fully acknowledge the fallacious tendencies of the "slippery slope" but if there's anywhere that the slippery slope isn't a fallacy, it's with precedent.

Cards on the table, I think our country has taken the completely wrong turn on what constitutes "Free Exercise" but that's likely a minority opinion on this board (or at least it's a minority opinion when it comes to the Free Exercise of evangelical Christianity. All other faiths seem to receive much more scrutiny).

I'm not sure I'd go all the way to 'wrong turn' yet, but certainly I have a question about whether maybe we've veered into "wrong lane." Though I do think we needed a little more juice to the free exercise side of 1A, I tend to agree that (i) I am worried that religion is becoming a proxy/stalking horse for politics in recent cases, and (ii) it's not clear to me that we've arrived at a doctrinal way to define the limits of this new free exercise jurisprudence (yet). I also sort of think the item (i) problem is a subset of a larger modern problem, on both sides, which is that there is way too much "policy" litigation being brought by "advocacy groups" on behalf of plaintiffs who are entirely fake/astroturf/manufactured such that the lawyer/advocate is the real client and the client (so often, a Doe) is just along for the ride. Perhaps even more juice into standing restrictions would help there. The new case plaintiffs are very unlikely to be celebrated by anyone as "heroes" in the way that Brown, Loving, Roe, Gideon or others of a previous generation who stuck their necks out were.

Interesting question as to the potential scope of substantive due process parental rights. I suppose one way to think about it is to define what the history-and-tradition scope of "parental rights" actually entails. Aside from religion, I think in these cases, what has been invoked is authority over health and welfare issues (and indeed, one of the children here apparently sought to commit suicide, and both have been in mental health treatment). Just guessing here, but I have my doubts/hopes that politics won't rise to mental health as you (perhaps humorously) suggest, any more than religion lowers to the level of politics as noted above. And absent that, I also wonder a bit whether parental rights would extend to control of a child's political opinions from a legal perspective.

 

[MTTiger19]

I understand what you're saying but why not a good thing for black voters. OK so we eliminate designated "black" districts. Isn't such a district in contravention of both Dr King's wants and the civil rights law prohibiting discrimination based on race. Looking at it in current form aren't whites, Latinos, and Asians disadvantage living in a "black" district? In a redrawn - fairly - district everyone gets to vote based on their wants and the qualifications of the candidates. I'm kind of surprised asians haven't complained about the lack of Asian districts. Or maybe they have and I just haven't seen it

We should get back to the basics of designing congressional districts. Out with gerrymandered districts black, democrat and Republican districts. It's no wonder we are in the current situation politically. Both parties organizing and carving districts for their benefit at the detriment of voters should stop

Identity politics. Your group before your country.

 

[fatpiggy]

wrong thread.

 

[fatpiggy]

wrong thread

 

[FLaw47]

Transing isn't a political issue, it is a medical issue. That's not very close to the slippery slope either, imo.

If it's a medical issue, I'm not sure what the first amendment has to do with it.

 

[FLaw47]

I'm not sure I'd go all the way to 'wrong turn' yet, but certainly I have a question about whether maybe we've veered into "wrong lane." Though I do think we needed a little more juice to the free exercise side of 1A, I tend to agree that (i) I am worried that religion is becoming a proxy/stalking horse for politics in recent cases, and (ii) it's not clear to me that we've arrived at a doctrinal way to define the limits of this new free exercise jurisprudence (yet). I also sort of think the item (i) problem is a subset of a larger modern problem, on both sides, which is that there is way too much "policy" litigation being brought by "advocacy groups" on behalf of plaintiffs who are entirely fake/astroturf/manufactured such that the lawyer/advocate is the real client and the client (so often, a Doe) is just along for the ride. Perhaps even more juice into standing restrictions would help there. The new case plaintiffs are very unlikely to be celebrated by anyone as "heroes" in the way that Brown, Loving, Roe, Gideon or others of a previous generation who stuck their necks out were.

Interesting question as to the potential scope of substantive due process parental rights. I suppose one way to think about it is to define what the history-and-tradition scope of "parental rights" actually entails. Aside from religion, I think in these cases, what has been invoked is authority over health and welfare issues (and indeed, one of the children here apparently sought to commit suicide, and both have been in mental health treatment). Just guessing here, but I have my doubts/hopes that politics won't rise to mental health as you (perhaps humorously) suggest, any more than religion lowers to the level of politics as noted above. And absent that, I also wonder a bit whether parental rights would extend to control of a child's political opinions from a legal perspective.

Nice post, thank you. I was for sure being sardonic in my hypothetical but I think you're picking up on what I'm getting at. The rules for this stuff feel extremely arbitrary to a layman and I'm not impressed when someone can engineer a legal theory to get their desired outcome when they aren't consistently applying that theory for outcomes they don't want as much (Gorsuch seems to be more principled on this, which I appreciate).

I have no idea what the genuine legal framework is for making it more difficult to transition (which is shown to have enormous mental health benefits) but allowing circumcision (which is admittedly not a huge deal but also has no real medical benefit). I guess you can say "parents own their kid's bodies" and that's consistent but still gross.

I appreciate that you brought up that one of the children had contemplated suicide. I don't know the particulars of the situation but I'd wager that informing the parents of a child who is trans that they're expressing these thoughts leads to far more suicides than it prevents.

 

[Aardvark86]

Nice post, thank you. I was for sure being sardonic in my hypothetical but I think you're picking up on what I'm getting at. The rules for this stuff feel extremely arbitrary to a layman and I'm not impressed when someone can engineer a legal theory to get their desired outcome when they aren't consistently applying that theory for outcomes they don't want as much (Gorsuch seems to be more principled on this, which I appreciate).

I have no idea what the genuine legal framework is for making it more difficult to transition (which is shown to have enormous mental health benefits) but allowing circumcision (which is admittedly not a huge deal but also has no real medical benefit). I guess you can say "parents own their kid's bodies" and that's consistent but still gross.

I appreciate that you brought up that one of the children had contemplated suicide. I don't know the particulars of the situation but I'd wager that informing the parents of a child who is trans that they're expressing these thoughts leads to far more suicides than it prevents.

This all works so much better if we can have these conversations without screaming at each other or resorting to name calling. There are no monopolists when it comes to hard-problem solvers.

And while I'm at it, I do greatly appreciate what other folks have done to keep this thread leaning to the civilized side of the line.

 

[fatpiggy]

If it's a medical issue, I'm not sure what the first amendment has to do with it.

It seems as if one of the main arguments from the left was that it was a decision that should be left between doctor and patient.

 

[FLaw47]

It seems as if one of the main arguments from the left was that it was a decision that should be left between doctor and patient.

I largely agree with that but this case (to my understanding) was based on strict scrutiny on Free Exercise of religion. If this is a medical issue, how is that a valid justification?

 

[fatpiggy]

Not sure if this one was reviewed by @Aardvark86 or not. An interesting case.

 

[Aardvark86]

Good morning boys and girls.

Today we get one or more opinions. Again, if I had to place bets on a "sexy" case, I'd bet on the Louisiana redistricting case.

And in that vein, I did take a little closer look at the NY redistricting stay from the other day. A couple of reactions...
1. Note that the state trial court actually issued its ruling on the basis of NY state law in holding that it was necessary to draw the map to create a 'crossover' district (ie, one in which racial minorities were not a majority but could elect their preferred candidate by attracting white voters, which also assumes that the minorities could "win" the relevant primary). Obviously NY courts can interpret NY law, but the SCOTUS stay of the opinion suggests that NY law violate the constitution as interpreted by the district court. In particular, Alito's (solo) concurrence may be something of a prelude to what we may see in LA -- the narrow construction to the efect that race-based districts are only permissible as an extraordinary remedy to address past discrimination, and even then have some shelf life.
2. There is a bit of a question about whether SCOTUS had jurisdiction to hear the case based on whether the NY CTA's denial of a stay represented a final state court decision; I tend to think they got this right, given the precedent cited and the nature of the request as a stay.
3. That said, where I think the majority did play fast and loose, and Soto very appropriately called them out - is in how the majority applied the Purcell principle (ie, that courts should not redraw/implement new districts at the last minute given the need for electoral stability/predictability for voters). Recall that this was a effectively an injunction case, so there is usually a need to show a strong need for extraordinary relief. Normally, Purcell has been applied when a state has redrawn a district, and after extended litigation, a court either blesses or curses that district, but there isn't enough time to roll out a new district before the election, so the Scotus orders them to default to the last one. Here though, the trial court ordered the redistricting commission to redraw a district, which they had not yet done. The majority/Alito asserted that Purcell could effectively be used as a sword rather than a shield to "prevent", up-front, the redistricting committee from drawing a questionable district, which might lose at a challenge at a later date that would be too close to the election to turn around. Clever, but imo dubious.

 

[Aardvark86]

Update: 2 dull opinions today, both unanimous:

1. An immigration case about standard of appellate review (substantial evidence) in an asylum case.
2. NJ Transit does not have NJ's sovereign immunity. (That should be a boon for the plaintiffs' bar in NY and Philly)

 

[Aardvark86]

Not sure if this one was reviewed by @Aardvark86 or not. An interesting case.

just an fyi, obviously an interesting sounding case here, but I am pretty sure this is just a denial of a cert petition, so I wouldn't read whatever the lower court's decision too broadly.

 

[Aardvark86]

Back at it today boys and girls. And I mean really back at it.

first, a 1a opinion about a street preacher on Friday. Unanimous for the street preacher enjoining criminal probation condition of prior restraint on future street preaching. Actually maybe a little more about criminal injunctions than 1a.

this morning - a BIG one in theory: whether all votes must be received by Election Day to be counted, given federal statute defining a single Election Day. I have a hard time believing the court will buy that

then Wednesday - birthright citizenship.

 

[fatpiggy]

Back at it today boys and girls. And I mean really back at it.

first, a 1a opinion about a street preacher on Friday. Unanimous for the street preacher enjoining criminal probation condition of prior restraint on future street preaching.

this morning - a BIG one in theory: whether all votes must be received by Election Day to be counted, given federal statute defining a single Election Day. I have a hard time believing the court will buy that

then Wednesday - birthright citizenship.

Why do you have a hard time believing the court will determine that election DAY actually requires a day? Do you care to expand?

 

[Aardvark86]

Why do you have a hard time believing the court will determine that election DAY actually requires a day? Do you care to expand?

Simply stated, I don’t think it’s at all unreasonable to interpret the term to allow a reasonable time for ballots postmarked on or before the day to be received and counted after the day. What’s key is cast and presented. It’s also consistent with the way it’s historically been interpreted, and pro-voter. And I’m not sure why you’d assume a presumption of fraud in the postal service postmarking processes.

perhaps it’s a function of many years ago when my law school deposit check literally got lost in the mail for weeks, and was received - mangled - on the day I went to beg to be admitted to the dean.

don’t get me wrong I hate early and mail voting generally and always vote in person on Election Day. Except of course the current redistricting ballot initiative in Va, which I make an exception for as it’s a phony election. (Ironically, this argument might actually be tangentially relevant to how the Va courts ultimately resolve the Va state law challenge)

 

[fatpiggy]

Simply stated, I don’t think it’s at all unreasonable to interpret the term to allow a reasonable time for ballots postmarked on or before the day to be received and counted after the day. What’s key is cast and presented. It’s also consistent with the way it’s historically been interpreted, and pro-voter. And I’m not sure why you’d assume a presumption of fraud in the postal service postmarking processes.

perhaps it’s a function of many years ago when my law school deposit check literally got lost in the mail for weeks, and was received - mangled - on the day I went to beg to be admitted to the dean.

don’t get me wrong I hate early and mail voting generally and always vote in person on Election Day. Except of course the current redistricting ballot initiative in Va, which I make an exception for as it’s a phony election. (Ironically, this argument might actually be tangentially relevant to how the Va courts ultimately resolve the Va state law challenge)

Understood, it seems your stance is based on your opinion rather than some legal theory or take on how the judges have historically ruled etc. That's fine, i was just kind of curious.

I don' think it's unreasonable to want all ballots to be counted with the highest amount of accuracy possible. That is what we should strive for and we should be able to obtain.

Why not just say all mail in ballots must be postmarked 10 days before election day? Any mail not received in 10 days would be presumably lost. Election day means ..... election day. Words have meaning. Just my $.02

 

[Aardvark86]

Understood, it seems your stance is based on your opinion rather than some legal theory or take on how the judges have historically ruled etc. That's fine, i was just kind of curious.

I don' think it's unreasonable to want all ballots to be counted with the highest amount of accuracy possible. That is what we should strive for and we should be able to obtain.

Why not just say all mail in ballots must be postmarked 10 days before election day? Any mail not received in 10 days would be presumably lost. Election day means ..... election day. Words have meaning. Just my $.02

well, every legal interpretation amounts to an opinion at some level. but it is ultimately an interpretation of the term 'election day'. I'd also note that there is a state piece that is relevant here - states do have the authority by statute to set electoral processes unless precluded by Congress. I have a hard time arguing that the use and identification of an 'election day' is so preclusive as to forbid a state from defining vote counting processes and rules.

The problem with a pre-election postmark is that it could still be received after election day, and you're right back where you're started. On top of that, I'd argue that's even more inconsistent with the idea of a single defined 'election day' which allows a person to cast their vote up to and on that day.

Having taken a peek at the underlying statutes this am, I don't think 2 usc 7 which specifies the election day really provides much help. But interestingly, 3 usc 1, which relates to presidential elections, throws an interesting curve ball -- it requires that presidential electors be appointed "on election day". That could arguably preclude the counting of ballots received after that date, but I don't think it's so compelling to overcome the basic interpretive approach i've laid out. Indeed, it may 'prove too much' in that could arguably require that votes actually have to be counted - not just received - by midnight.

Also, just a side note curiosity - the party defending the vote receipt rules is actually the state of mississippi - not exactly a bastion of voting liberalization, or even one whose size nature and scope would be expected to present significant counting challenges.

Interesting side note #2 - per ncsl, there are currently 14 states (plus a few territories) that count mail ballots received after election day. With a few exceptions, most of them are actually fairly urban in nature (eg, CA, IL, MD, NJ, NY, TX), which strikes me as a little counterintuitive.

 

[Aardvark86]

separately, a per curiam opinion (6-3) today in Zorn, a case holding an officer had qualified immunity when they used pain compliance to remove a protestor resisting arrest at a state capitol, who went there with the avowed purpose of being forcibly removed and refused to budge even though the officer said 'please'. does my heart good.

 

[BigPapaWhit]

Came here just to check on this.

One thing not mentioned by you, unless I missed it: the strain on civil services. I cannot speak for every state or district, but every cycle there seems to a be a call to arm to help at the polls, etc. Making the counting process more restrictive could put even more strain on an under resourced system.

My own personal bias. Why restrict voting to one day? Make it an entire week/month, anything to increase what I consider an abysmal participation rate. I know that would probably drive media crazy and peoples need to know. It would be interesting to see if turnout would increase or decrease based on daily or weekly results. Again, why restrict the circus to one day? Of course, this may be counter to my first concern. The cost to keep the electoral machine running could balloon astronomically.

PS I have worked in a mail sorting facility during the Holiday rush. It is a madhouse. Just because one says handle with care/ do not bend etc., does not mean a thing. So many of those places are automated, the machines eat boxes and letters alike, never mind all the crevices and cracks letters/pay checks can fall into.

 

[Aardvark86]

Came here just to check on this.

One thing not mentioned by you, unless I missed it: the strain on civil services. I cannot speak for every state or district, but every cycle there seems to a be a call to arm to help at the polls, etc. Making the counting process more restrictive could put even more strain on an under resourced system.

My own personal bias. Why restrict voting to one day? Make it an entire week/month, anything to increase what I consider an abysmal participation rate. I know that would probably drive media crazy and peoples need to know. It would be interesting to see if turnout would increase or decrease based on daily or weekly results. Again, why restrict the circus to one day? Of course, this may be counter to my first concern. The cost to keep the electoral machine running could balloon astronomically.

PS I have worked in a mail sorting facility during the Holiday rush. It is a madhouse. Just because one says handle with care/ do not bend etc., does not mean a thing. So many of those places are automated, the machines eat boxes and letters alike, never mind all the crevices and cracks letters/pay checks can fall into.

As a practical matter, I don't think anyone is suggesting (in this case, at least) restrictions on early voting, and I do agree (begrudgingly) that it makes some sense in a modern society (though I really don't think it ought to be an extended event - maybe a week, plus an absentee process). But you do have to have an end point, and any end point will always seem arbitrary.

I'm less sympathetic about workload - a foreseeable cost that people can plan for. I do get the reality of mail sorting (having watched Miracle on 34th Street), though honestly, I'm not in the camp that it creates such risks of reliability that it should be much of a driver here. Again, from my perspective, a reasonable period of a couple of days (probably no more than 7) for receipt of a postmarked ballot) seems quite defensible. (Less defensible, BTW, might be NJ's law that doesn't even require a postmark!!)

Candidly, I'm a little surprised at how (relatively) few states allow extended counting periods for mail ballots.

I have the oral argument on this morning in the background. Not able to focus on it, but seemed like Gorsuch was really giving the state a hard time. Overall though i think the state's counsel keeping his argument simple. Surprised to see that Paul Clement - as good as they get - is arguing for the republican and libertarian parties challenging the law. (Naturally, Soto is not letting him answer any questions)

 

[UrHuckleberry]

As a practical matter, I don't think anyone is suggesting (in this case, at least) restrictions on early voting, and I do agree (begrudgingly) that it makes some sense in a modern society (though I really don't think it ought to be an extended event - maybe a week, plus an absentee process). But you do have to have an end point, and any end point will always seem arbitrary.

I'm less sympathetic about workload - a foreseeable cost that people can plan for. I do get the reality of mail sorting (having watched Miracle on 34th Street), though honestly, I'm not in the camp that it creates such risks of reliability that it should be much of a driver here. Again, from my perspective, a reasonable period of a couple of days (probably no more than 7) for receipt of a postmarked ballot) seems quite defensible. (Less defensible, BTW, might be NJ's law that doesn't even require a postmark!!)

Candidly, I'm a little surprised at how (relatively) few states allow extended counting periods for mail ballots.

I have the oral argument on this morning in the background. Not able to focus on it, but seemed like Gorsuch was really giving the state a hard time. Overall though i think the state's counsel keeping his argument simple. Surprised to see that Paul Clement - as good as they get - is arguing for the republican and libertarian parties challenging the law. (Naturally, Soto is not letting him answer any questions)

Not strictly related, but one thing that bothered me was that in many of the battleground states, they added a law that counting couldn't even begin until election day, which of course delayed everything into the days after the election in these battleground states, which was then used to cry malfeasance. Whereas I believe Florida for example allowed for pre-counting of early voting and mail in votes and was able to report much quicker.

 

[Aardvark86]

Not strictly related, but one thing that bothered me was that in many of the battleground states, they added a law that counting couldn't even begin until election day, which of course delayed everything into the days after the election in these battleground states, which was then used to cry malfeasance. Whereas I believe Florida for example allowed for pre-counting of early voting and mail in votes and was able to report much quicker.

Agreed that in theory counting of ballots before the day isn't inherently a problem and makes some operational sense. My only concern is whether, these days, you could really keep the rolling count confidential and secure. What you don't want is for early results to become public, and then used as an advertising tool by the parties to scare or motivate people.

 

[BigPapaWhit]

As a practical matter, I don't think anyone is suggesting (in this case, at least) restrictions on early voting, and I do agree (begrudgingly) that it makes some sense in a modern society (though I really don't think it ought to be an extended event - maybe a week, plus an absentee process). But you do have to have an end point, and any end point will always seem arbitrary.

I'm less sympathetic about workload - a foreseeable cost that people can plan for. I do get the reality of mail sorting (having watched Miracle on 34th Street), though honestly, I'm not in the camp that it creates such risks of reliability that it should be much of a driver here. Again, from my perspective, a reasonable period of a couple of days (probably no more than 7) for receipt of a postmarked ballot) seems quite defensible. (Less defensible, BTW, might be NJ's law that doesn't even require a postmark!!)

Candidly, I'm a little surprised at how (relatively) few states allow extended counting periods for mail ballots.

I have the oral argument on this morning in the background. Not able to focus on it, but seemed like Gorsuch was really giving the state a hard time. Overall though i think the state's counsel keeping his argument simple. Surprised to see that Paul Clement - as good as they get - is arguing for the republican and libertarian parties challenging the law. (Naturally, Soto is not letting him answer any questions)

I am in favor of early voting. It has been helpful. As a member of the military, I tend to use it more than absentee ballots when practical.

There should be an end date. I cannot imagine a scenario where so many ballots are delayed or lost it impacts a national election. Only to realize as I type, that state and local elections also share those ballots. Those can be decided by a few ballots. So. do election commissions hold off on tight results for ballots that were postmarked ahead or on election day? 3-5 days? Interesting conundrum.

 

[BigPapaWhit]

Agreed that in theory counting of ballots before the day isn't inherently a problem and makes some operational sense. My only concern is whether, these days, you could really keep the rolling count confidential and secure. What you don't want is for early results to become public, and then used as an advertising tool by the parties to scare or motivate people.

What is wrong with scaring or motivating people to vote? I am in favor of a bigger turnout in our country. I might feel differently if turnout was in the 80th percentile of eligible voters but I think currently the US is at 60ish %. I am less concerned with the counterargument that it might discourage voting because the race is already decided.

 

[Aardvark86]

I am in favor of early voting. It has been helpful. As a member of the military, I tend to use it more than absentee ballots when practical.

There should be an end date. I cannot imagine a scenario where so many ballots are delayed or lost it impacts a national election. Only to realize as I type, that state and local elections also share those ballots. Those can be decided by a few ballots. So. do election commissions hold off on tight results for ballots that were postmarked ahead or on election day? 3-5 days? Interesting conundrum.

I think an early window does make some sense as you note, and that state/local can be quirkier. My only policy qualm with it is that if the period is 'too long' it plays into modern industrialized vote harvesting tactics by parties, which I really despise. My personal preference, as noted, is showing up on the day, because I actually think it's a really important civic education mechanism for underscoring, if not even celebrating, the serious gift that is the right to vote.

 

[Aardvark86]

What is wrong with scaring or motivating people to vote? I am in favor of a bigger turnout in our country. I might feel differently if turnout was in the 80th percentile of eligible voters but I think currently the US is at 60ish %. I am less concerned with the counterargument that it might discourage voting because the race is already decided.

Obviously, people scare people into voting based on policy all the time, but not based on the 'horserace' considerations. But consider, for example, if people then just started lying about where the horserace actually stood at a given point in time. And then reality differs - maybe substantially, maybe only incrementally. that's the sort of thing that really does undercut public confidence in elections.

Also - be a little careful what you wish for in terms of high voter turnout. Sometimes low turnout reflects cynicism, and sometimes it actually reflects satisfaction with the current environment. The highest voter turnouts on historical records were usually found in communist countries.

 

[BigPapaWhit]

I think an early window does make some sense as you note, and that state/local can be quirkier. My only policy qualm with it is that if the period is 'too long' it plays into modern industrialized vote harvesting tactics by parties, which I really despise. My personal preference, as noted, is showing up on the day, because I actually think it's a really important civic education mechanism for underscoring, if not even celebrating, the serious gift that is the right to vote.

I would be much more in favor of a actual day, if the country would make it a national paid holiday. Many communities/states are doing better but if we can, why not?

 

[BigPapaWhit]

Obviously, people scare people into voting based on policy all the time, but not based on the 'horserace' considerations. But consider, for example, if people then just started lying about where the horserace actually stood at a given point in time. And then reality differs - maybe substantially, maybe only incrementally. that's the sort of thing that really does undercut public confidence in elections.

I understand your point. I can only offer people should vote regardless of where their horse is running, but that is not reality.

 

[Aardvark86]

I would be much more in favor of a actual day, if the country would make it a national paid holiday. Many communities/states are doing better but if we can, why not?

I'd love to see that. Obviously you'd still need some flexibility though (vacations, out of town work, and the reality that some people still have to work in some businesses.)

 

[UrHuckleberry]

Agreed that in theory counting of ballots before the day isn't inherently a problem and makes some operational sense. My only concern is whether, these days, you could really keep the rolling count confidential and secure. What you don't want is for early results to become public, and then used as an advertising tool by the parties to scare or motivate people.

Sure, but it is already done and allowed in the great majority of the states and there aren't issues. But you'll notice a few battleground purple states on the exceptions, and where a lot of the claims of taking forever to count are as well:




Source: https://www.ncsl.org/elections-and-...mail-ballot-processing-and-counting-can-begin

 

[fatpiggy]

Alito gets it.


"We have LOTS of phrases that involve two words, the last of which, the second of which is DAY. Labor DAY, Memorial DAY, George Washington's birthDAY, Independence DAY, birth DAY, and election DAY!" "And they're all particular DAYS." "So if we start with that, if I have nothing more to look at than the phrase election day, I think this is the DAY in which everything is going to take place, or almost everything."

 

[Jfcarter3]

I guess I don't understand the problem here - do date mailed. Your taxes don't have to be received by 4/15, they have to be postmarked by then. Hell, legal documents are governed by the date mailed depending on a state's view of the "mailbox rule". Just make this the same for consistency. Seems like a solution searching for a problem.

 

[Aardvark86]

Alito gets it.


"We have LOTS of phrases that involve two words, the last of which, the second of which is DAY. Labor DAY, Memorial DAY, George Washington's birthDAY, Independence DAY, birth DAY, and election DAY!" "And they're all particular DAYS." "So if we start with that, if I have nothing more to look at than the phrase election day, I think this is the DAY in which everything is going to take place, or almost everything."

well, he sort of gets it. i don't think it's nearly as obvious as to just what all has to happen on/by that day, merely because of the use of the word day..

 

[Aardvark86]

I guess I don't understand the problem here - do date mailed. Your taxes don't have to be received by 4/15, they have to be postmarked by then. Hell, legal documents are governed by the date mailed depending on a state's view of the "mailbox rule". Just make this the same for consistency. Seems like a solution searching for a problem.

Not quite comparable. Unlike taxes, which you will be obligated to file and pay at some point, there is arguably more reason to be "flexible" around postmark dates. And particularly because you can file for an extension if you miss the filiing deadline. Elections, on the other hand, do have to "end", even if the 'end point' is seemingly arbitrary.

IMO, the way this 'should' get resolved by the court is that, given that the constitution provides that states set the time place and manner of electoral processes except as otherwise provided by congress, and here the mere identification of an 'election day' by Congress does not clearly preempt state rules on timing of receipt and counting, the state should win. That's actually fairly ordinary legal reasoning..