Originally Posted by Rod Kaufman
The scenario: Two Republican electors go to the two Trump appointed Federal judges on their appellate court in order to block(what else is new)the voters from having their mailed-in ballots count if they arrive after the post marked date on the ballot even though they were mailed in on time. The two "originalist" judges approve the ban because "the constitution does not provide a pandemic exception." The third judge dissents to no avail.
There you have it, yup there's no pandemic exception in the constitution. Nevermind they didn't even know what a pandemic is when they wrote the constitution. How about pre-flight federal regulations requiring pre-flight inspections before you board your next flight. They're not in the constitution either. Better ban those, too...
The critical question is this: What does the law say in the applicable state?
Your favorite source, CNN, says that the law in Minnesota is that ballots must be received
by COB on election day. (Same as Colorado by the way)."The court found the Minnesota secretary of state's accommodation went against a state law that said ballots delivered by mail to elections officials after 8 p.m. on Election Day should be marked late.
"The Secretary's instructions to count mail-in ballots received up to seven days after Election Day stand in direct contradiction to Minnesota election law governing presidential elections," the ruling stated."
So it looks like we have a duly passed Minnesota law
that says the ballots have to be received
by COB on election day, but a rogue Secretary of State decided to unilaterally extend that window by a week. I wonder what party that Secretary of State represents?
In this instance, your "originalist judges" are absolutely correct. There is nothing in the Constitution that would cause this duly-passed Minnesota law to be unconstitutional. So the law stands as written
. Score one for the "originalists." I can imagine an activist judge might say something to the contrary, something along the lines of: "Hey, the plain language of the law is that the ballots have to be received by COB on election day. But I, in my immense wisdom, am going to unilaterally suspend that law and overrule the legislature because of the pandemic."
I hope you agree that this hypothetical would be inappropriate judicial activism.
Thanks for posting a very useful example.