Originally Posted by James Brown
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.
I think the differential point here is, "Simon noted that while ballots received after 8 p.m. on Election Day must be segregated, it is undecided whether those votes ultimately will count toward the election total. Election officials are still allowed to count but not tabulate ballots received after the deadline, so it is possible that there will be two final tallies: ballots that made it in before 8 p.m. and those that didn't, he said." "Secretary of State Steve Simon noted, in frustration, that oral arguments in the case were held on Tuesday during a conference call, the very last day the Postal Service said a ballot could be postmarked and guaranteed to be delivered by Election Day. “I had hoped and reasoned that if the 8th Circuit was going to change a vitally significant deadline, like acceptance of ballots—if they were inclined to do that, I would hope they would have done it an hour after the hearing, even if it was a one-line order,” Simon said ahead of ruling. “It would be tremendously disruptive at this point … to issue an order overturning Minnesota’s postmark rule.” But the disruption is the point after all." "A previous version of this story incorrectly said the judges ruled the state must reject ballots that arrive after 8 p.m. on Election Day. This story has been updated to reflect that judges predicted ballots received after Election Day could ultimately be invalidated and ordered them to be kept separate." So the ultimate fate of those votes is still undecided at this point.