Can state or federal courts order post offices to postmark absentee ballots? To stay open late on election day?

More unanticipated consequences from Republican National Committee v. Democratic National Committee

|The Volokh Conspiracy |

On April 6, the Supreme Court decided Republican National Committee v. Democratic National Committee. This case held that absentee ballots in Wisconsin would be counted if they were "postmarked by election day." The Washington Post reports there was a "unexpected outcome" from this decision:

Because of the order, election officials for the first time tallied absentee ballots postmarked by Election Day, rather than just those received by then — underscoring the power of narrow court decisions to significantly shape which votes are counted.

Now, the Democratic Party is seeking to extend the Roberts Court's latest ruling. (Yes, you read that right):

Democrats think they have secured a game-changing precedent from the Supreme Court's 5-to-4 order. In the past week alone, lawsuits bankrolled by Democratic committees have been filed in four states seeking similar postmark rules and citing the Wisconsin opinion to bolster their argument. More cases are expected in the coming week….

Now, Democrats are citing the majority opinion in their latest round of litigation.
In addition to seeking postmarked-by standards, Democrats are aiming to secure free postage for ballots, ballot mailings to all registered voters and the right for third parties to collect ballots from voters, a controversial practice often called ballot harvesting.

"We're saying, essentially, let's take into account the pandemic. Let's keep everybody safe," said Eric H. Holder Jr., who served as attorney general in the Obama administration and heads a group that is financing new lawsuits in Texas and North Carolina.

May I speculate about another unanticipated consequences of RNC v. DNC? Interested parties will litigate to ensure the United States Postal Service postmarks more ballots. The Washington Post observed that some ballots were not postmarked at all:

Thousands of ballots were rejected because of postmark issues, The Post's examination found. Hundreds were rejected because of a late postmark, but many hundreds more showed no postmark or an illegible one. In Milwaukee, that number was 390, and city election officials chose to count those ballots anyway. Most other localities discarded such ballots, even though many may have been posted on time.

Several election officials said that some post offices do not use postmarks with dates but that their hands were tied by the high court's ruling.

In a statement, the U.S. Postal Service said its inspector general is conducting an investigation "regarding potential issues with absentee ballots in Wisconsin."

Interested parties, I'm sure, will sue the USPS to ensure that ballots are postmarked properly. And what about illegible postmarks?  Courts will have to decide how to assess the validity of various smeared postmarks. Say hello to the new hanging chads!

And what about election day? Interested parties routinely seek injunctions to keep polling locations open late. The usual rule: if you are in line, you can vote. Why not similar injunctions for post offices? Keep the postoffice, and the postmarks stamping till midnight, or later, to ensure late-delivered ballots are marked.

The Supreme Court may have unintentionally opened up a new frontier in election law.

And there are two unanswered questions in my mind. First, can a state court judge even issue an order to a federal postal official? McCulloch on the mind. Second, would a federal court have jurisdiction over state election law disputes?

Everyone, please think these issues through now, well before election day. You're welcome.

NEXT: Chicago Mayor Lori Lightfoot Warns Stay-At-Home Violators: 'We Will Take You To Jail, Period'

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  1. What authority does a state court have over the USPS?

    And as to Eric Holder, his ballot was offered to a total stranger. See:
    https://www.projectveritas.com/investigation/u-s-ag-eric-holders-ballot-offered-to-total-stranger/

    If Trump loses, OK. But if Trump loses because of election fraud, you will have a shooting war.

    1. Vote fraud is extremely rare in the US as proven out by numerous investigations by both democratic and republican administrations that say so.

      As usual you are wrong again. Do you enjoy this?

      1. You aren’t suspicious when over 100% of eligible voters actually vote? You aren’t suspicious when the first town in NH on every good road from MA or ME has a much higher same-day registration? (NH is prosecuting them for voting in 2 states.)

        1. I am incredibly suspicious of posts alleging fantastically detailed fantasies and no citations.

          1. As you should be.
            That said, I would count a world completely without voter fraud as one of those fantasies.

          2. fantastically detailed fantasies and no citations.

            That was his second choice for registration name if “Dr. Ed” had been taken.

      2. Or rather so commonplace as to be unrecognizable for what it is.

        College kids for one example. College towns like to have their residency numbers padded, and were really saddened to by this covid thing sending their non-residents home where they could have been counted as both a resident there, and a resident at their natal home. Colleges push residency documentation also by pushing voting. This amplifies the college’s local footprint in their regional politics, and increases allocated federal and state dollars to their town, a win-win in their town-gown relationship.
        Most parents in suburbia know this is going on, and are perfectly alright with it. This kids, if they think anything of it might believe that it is their right to have voting interests in more than one city.

        Normalization of a deviance. Nobody thinks anything of double voting, or double censusing.

        1. That’s…not voter fraud. Nor is it deviance.

          1. he claimed people are voting in 2 cities (where their parents live and where they go to school)

            if that’s the case, are you really claiming it isn’t fraud?

            1. No, he’s talking about registrations and registries, not double-voting.

    2. More theories of civil war from the Lt. Col. of the 43rd Keyboard Battalion.

    3. It’s an old saw, but I do wonder if Ed is a secret socialist, because he appears to like being publicly owned.

  2. Dr. Ed quotes from Jeff Cuhna, an obscure NE radio right wing quack, trying to ‘make the Bigs’. He is probably Gulf League or maybe Cape League now, lost in a sea of something.
    Dr. Ed listens to and believes this later day Moses Pray.
    I’m suprised we haven’t seen Dr. Ed’s links to debunked claims of busloads of Lawrence and Lowell folks crossing the boarder to vote in NH???????? When does this stop?
    I’d like to see a link to a record source indicating individuals are being prosecuted for voting in MA and NH.

      1. “Along the way, their interactions with the Attorney General’s office left them with the impression that the state officials who were interviewing them understood the double voting was unintentional.”

        How damning! A coordinated liberal plot. Every vote counts!
        How do you even know they didn’t vote Republican?
        Sorry, you’re still in deep left field.

    1. Would that be Jeff Kuhner?
      Doing “Morning Drive” on a 50,000 watt station in the Boston market is “big leagues” in my book, but I digress…

      https://wrko.iheart.com/featured/kuhners-corner/content/2020-05-01-end-the-shutdown/

  3. Major post offices in Los Angeles are open on midnight on April 15, so that people paying taxes via the mail will have them postmarked as on-time. I see no reason why that can’t be done for elections as well. (Well, of course it *can* be done…I am failing to see why any neutral politician would not support it. It’s not like anyone has argued that ballots mailed at noon tend to be valid, while ones cast right before midnight are more likely to be fraudulent.)

    I speculate that, now that the Sup. Ct knows that their recent ruling might give Democrats more of an even playing field, it will try to retroactively go back–a la “Bush v Gore” and say that the ruling has no precedential value.

    1. “I am failing to see why any neutral politician would not support it.”

      If you are going to pick a cutoff time, what’s the argument that one particular time – say midnight – is a better cutoff that 5 PM or 3:37 AM or whatever? I mean, what about the poor voter who arrives at 12:01 … has she been disenfranchised because of that?

      I suppose it is a controversy because one side thinks it will give them an advantage? Is there any actual evidence that the voters of one party are less punctual than voters from the other side? Washington has been completely vote by mail for years. We get our ballots a couple weeks ahead of time, and usually mail them several days prior to the deadline. Why would voters from one party have a harder time doing that?

      1. …are you just making up an argument and then addressing it?

    2. Why can’t we vote on November 5th for an election on November 4th? What’s wrong with that? Is a vote on November 5th any more likely to be fraudulent than a vote on November 4th? Is there any practical reason people shouldn’t be able to vote on November 5th for an election on November 4th?

      That logic extends to postmarks. Outside extremely unusual situations (IE, COVID), you want the all ballots in hand when the polls close. This is for multiple reasons.

      1. It speeds counting of results in the election.
      2. It makes sure you don’t have any “surprises” that overturn the election.

      With both 1 and 2, remember the mail takes time. If you’re just looking at postmarks, the actual ballots could come in days after the election. And there would be absolutely no knowledge that a late mass of absentee ballots were coming in. So, results would be released, and then 2 days later, a huge mass of absentee ballots would come in, which overturns the elections.

      3. It doesn’t allow for a late “swing” of voters to come in and vote after the polls have closed and results have started to be released.
      -Remember, post offices are open late. Imagine, polls close in New Hampshire at 7 PM. But, post offices are still open in California for another hour. (and Hawaii even later). So, people can vote after polls close and results begin to be released.

      1. I mean, by that logic we shouldn’t be keeping the post office open for tax day either. Is a check less valid on the 16th? etc.
        And yet, somehow, we have not lost the republic due to our late tax day cuttoff.

        As to your scenario where they release results before all the absentee come in, you do know they only certify and release the result once it’s verified that all the remaining absentee ballots can’t change the outcome, right?

        Is it just a coincidence that you are again coming down against making it easier to vote?

        I mean, I don’t much care if the cutoff is COB or midnight so long as the line is bright and clear, but these arguments…

        1. I’ll make the argument again Sarcastro, why can’t you vote on November 5th for an election on November 4th? It makes it easier to vote, right?

          “As to your scenario where they release results before all the absentee come in, you do know they only certify and release the result once it’s verified that all the remaining absentee ballots can’t change the outcome, right?”

          Here’s the thing. If they don’t actually KNOW how many absentee ballots are coming in, how can they certify the results? For example, in Oregon, voter turnout was 78% of registered voters. All registered voters got an absentee ballot. That means 22% of ballots were outstanding, and “could” just be in the mail somewhere. That’s enough to swing almost any election.

          1. Let’s add onto this. Let’s call it a close election. Within 20,000 votes in a state.

            There are close to 9 million Americans overseas. A reasonable % of them vote. Now, be aware that international mail can take 7 to 21 days. That means, you can’t REALLY certify results for at least 21 days, because the vote could still be “in the mail”.

            1. AL, as I explained, this is an already solved problem: if the margin of victory is over the number of absentee ballots yet to be received/counted, that’s when they call it. And that’s generally the case.

              1. You’re not thinking this through Sarcastro,

                Remember, you don’t know how many absentee ballots were mailed. You only know how many you sent out initially, and how many you currently have. And if you’re a state like Oregon where EVERYTHING is by absentee ballot, on election day you’re still waiting for 20-30% of ballots to come in. Many probably won’t be returned, but you have to assume they’re in the mail, and you need to wait 21 days for everything to come in. You can’t “certify” the results when there might be enough outstanding ballots that are “in the mail”

                Which starts to be a big problem. Beyond the fact that it violates laws in many states as to when the counties need to certify their election results, it starts to run into the date the Electoral College is required to vote for President…the first Monday after the Second Wednesday in December.

                The best way to demonstrate this is the 2000 election in Florida. That was on November 7th. That debate was barely resolved in time. But add on 21 days, and you blow way past that date, till January 3rd, throwing the entire Presidency at risk.

                1. Absentee ballots have been a thing for a long time. Your objections have already been addressed.

                  Maybe given current circumstances it will take a while for the threshold of potential absentee votes to be above the current margin of victory, and we may have to wait a while before the results.

                  Is that worse than mandatory recount laws?

                  The 2000 election is not a set of conditions relevant to this issue.

                  1. “Absentee ballots have been a thing for a long time.”

                    They have been. And in states like Oregon that are entirely Absentee, they handle it by…requiring ballots to be in by election day.

                    Moreover, in numerous elections, the number of absentee ballots is well over the margin of victory. The 2000 election is an example of how it easily could happen again, but be made worse. Historical “worst case” examples are extremely relevant to this situation. Arguing they aren’t is….blind.

        2. Look, I think everyone is aware that there’s this stereotype that some Democratic constituencies are very poorly motivated to vote. And BOTH parties accept that stereotype as true.

          So the Democrats are forever pushing making voting ever more convenient. And Republicans resist prioritizing convenience over every single other value. It’s understandable on both sides.

          Democrats, of course, view this rather more darkly, because they don’t admit there ARE any other values worth being concerned about.

          1. Actually, I think this is changing. Since the GOP has started to make major inroads among the working class voters (while Democrats are picking up more of the professional class, who tend to vote more), certain types of turnout will favor the GOP.

            1. GOP won high turnout elections in Florida and Georgia in 2018, a big Dem year otherwise.

          2. Or, maybe Dems are pushing to make voting more convenient because they fell like it’s a moral good to allow as many people to participate in our republic as possible.

            And Reps are pushing to make it harder because they think it’s a moral good to ensure that those who participate in our republic are properly curated.

            I mean, that’s the arguments both sides put forth, without your telepathy.

            1. “Or, maybe Dems are pushing to make voting more convenient because they fell like it’s a moral good to allow as many people to participate in our republic as possible.”

              Wanting to allow as many people as possible who are legally entitled to vote, and want to vote, to be able to vote, is a reasonable goal. The problem is that you accurately described the Democrats’ position above: To maximize participation without any concern for whether it’s legal.

              From this perspective, any safeguards at all against illegal voting are improper. Cleaning voting rolls, signature matches, requiring ID, verifying citizenship, maintaining chain of custody on absentee ballots, requiring people to vote on time and in the right place? All off these get in the way of maximizing the number of votes cast, all of them have to go. All of them are routinely opposed by Democrats.

              1. Yeah, Dems being cool with illegal votes is just your partisan telepathy acting up again.

                I’m fine with voter ID, if we make ID’s free. That can’t be such a huge lift. And yet Republicans are resistant to that fix.

                I have not seen Dems oppose maintaining chain of custody on absentee ballots, unless you mean opposing Republican allegations that a set of ballots has been spoiled by the lack of such.

                Cleaning voting rolls, signature matches. These have been proven to scrub many legal voters off the rolls. The GOP remains super into them, despite this cost.

                1. “Yeah, Dems being cool with illegal votes is just your partisan telepathy acting up again.”

                  Is it?

                  “House Democrats voted Friday to defend localities that allow illegal immigrants to vote in their elections,”

                  https://www.washingtontimes.com/news/2019/mar/8/house-votes-favor-illegal-immigrant-voting/

                2. “I’m fine with voter ID, if we make ID’s free. That can’t be such a huge lift. And yet Republicans are resistant to that fix.”

                  And yet, faced with voter ID laws, Democrats have not generally taken a “Fine, just make the ID free.” stance. They’ve instead opposed the ID being required at all. Opposition to voter ID, not opposition to ID costing something, is still the Democratic party’s official stance.

                  “I have not seen Dems oppose maintaining chain of custody on absentee ballots,”

                  Ballot harvesting.

                  “Cleaning voting rolls, signature matches. These have been proven to scrub many legal voters off the rolls. The GOP remains super into them, despite this cost.”

                  So, promote doing them better, rather than opposing doing them at all. The only way to avoid accidentally scrubbing at least a few legal voters is to entirely stop scrubbing voters! But if you’ve got provisional voting or same day registration, that’s a fixable mistake.

          3. Tell us, Brett.

            Exactly what values are advanced by making it harder to vote?

            The only value the Republicans are advancing is keeping Democratic voters away from the polls. They pretty much openly admit it.

            And no, fraud is not remotely a problem. Multiple investigations have shown that, despite the fact that you “know” it is.

            1. Exactly what values are advanced by making it harder to vote?

              Well, letting other people — any other people — vote dilutes my vote. Me being the sole decision maker is an important value of mine.

            2. “Exactly what values are advanced by making it harder to vote?”

              Setting aside a level of difficulty in voting that would be better described as “not making voting as easy as humanly possible”, making it harder to vote doesn’t directly advance much in the way of values.

              BUT, making it a little harder to vote can easily be a consequence of actions aiming at reasonable values.

              Prohibiting ballot harvesting, requiring people to prove they’re who they claim to be, requiring ballots to be cast by a specific day and hour, and in your own precinct, these all make voting a bit harder. But they all legitimately advance important values.

            3. “And no, fraud is not remotely a problem. Multiple investigations have shown that, despite the fact that you “know” it is.”

              Multiple deliberately hobbled investigations, sure.

          4. Of course, with vote by mail (and particularly vote by mail in a time when there’s potential health risks to vote in person) it’s not at all clear that the usual partisan divide here makes sense since Republican constituencies (notably the military and elderly) tend to vote disproportionately by mail.

            https://thehill.com/homenews/campaign/493133-study-finds-universal-vote-by-mail-doesnt-provide-advantage-to-either-gop

        3. “I don’t much care if the cutoff is COB or midnight so long as the line is bright and clear,…”

          It sounds like we’re in agreement.

          “I mean, by that logic we shouldn’t be keeping the post office open for tax day either.”

          I have never really understood that either. Typically you get a couple of months between when you get all the info you need and April 15th. The procrastinators could just do their last minute thing on April 14th, and some poor postal clerk wouldn’t have to stay up. To be clear, I don’t object either, but it does seem like a waste of a few postal man hours.

          And, like you apparently, I don’t much care when the election deadline is. What I’m trying to understand the ‘it’s disenfranchisement!!!!’ argument. I don’t see why having that deadline being 12:01AM, noon, 5PM, or 11:59 PM on 5Nov favors one party over the other.

          1. Like I said above, there’s a long standing stereotype, accepted by both parties, that the Democrats have a lot of low motivation voters, who will fail to vote in the face of the slightest obstacle. Literally, they’ve complained that a police car making a traffic stop near a polling place was “voter intimidation”!

            So, it really doesn’t matter what the deadline is set as, they’ll always push to move it further back, on the assumption that the newly permitted votes will favor them.

          2. Glad we agree. Though I do get the disenfranchisement argument at some point. You would agree that at some point pulling it up makes it disenfranchisement, right?

            If it needs to be postmarked the day before the actual election, that’d seem hinky, no? I’d say the same thing for noon, really.

            1. “You would agree that at some point pulling it up makes it disenfranchisement, right?”

              ???

              “If it needs to be postmarked the day before the actual election, that’d seem hinky, no?”

              I dunno. Bear in mind, my state has been 100% mail voting for 2 or 3 decades, so for us ‘the actual election’ and ‘the date the P.O. needs you ballot’ are kind of the same date, whatever it may be.

              But suppose a state that does mixed mail and in person electronic voting wants to, for whatever reason, have final election results available soon after the end of the in person voting. So the state says ‘you can vote in person until 7PM on Nov 9th, or you can choose to do a mail in ballot, but it must arrive at our office by Nov 5th, so we can do all the opening and counting by Nov 9th’.

              That doesn’t disenfranchise anyone – everyone gets to vote by whichever method they prefer, and it doesn’t favor any particular party. How is it any more objectionable than ‘ballots must be filled out in ink’ or any other neutral requirement?

        4. I think part of the reason the post offices are open to midnight is to spread out the load — sure it’s good PR but imagine all those people showing up at 5 PM…

      2. 2. It makes sure you don’t have any “surprises” that overturn the election.

        This shouldn’t be a consideration. Everyone knows that absentee ballots that aren’t counted on the night, so everyone knows that a close result may change.

    3. “I am failing to see why any neutral politician would not support it. ”

      LOL

      santamonica811: All my views are objectively correct.

      1. Bob,
        You are confusing ‘objectively’ with “subjectively.” No worries…it’s a common mistake.

        1. No, when one says all “neutral politicians” support my position, that is saying that your view is not subject to debate, its an objective determination.

    4. The ability to submit ballots after official counts is a game-changer. It wouldn’t be especially difficult. If you have a razor-thin race, it would be trivial to push in a few hundred last-minute absentee ballots before midnight with postmarks. With extremely minor levels of corruption (one postman), you could put as many as you needed at your leisure for the next several days.

      Come on, this is 18th century level voter fraud. Boss Tweed would have thought it primitive.

      1. it would be trivial to push in a few hundred last-minute absentee ballots before midnight with postmarks.

        How are they getting those last-minute voters? Because that’s a harder lift than you seem to give it credit for…

        1. How are they getting them? They know who’s registered to vote, they know who DOES vote. The difference is the list of people who can be voted on behalf of.

          After the voting has taken place, you don’t even have to worry about the person who seldom votes, but up and decides that THIS election they’re going to bother. You know you’re not going to be embarrassed by duplicate absentee ballots showing up, or somebody showing up to vote in person being told they already voted absentee. AND you know exactly how many votes you need to manufacture.

    5. It’s not like anyone has argued that ballots mailed at noon tend to be valid, while ones cast right before midnight are more likely to be fraudulent.)

      How is it not blindingly obvious that that is indeed the case. Ballots “cast” after the polls have closed and the exit polling information is known are far more likely to be fraudulent, for the same reason that some large Democrat-controlled counties are notorious for always delaying reporting their results until everyone else has, so they know how many votes they have to come up with.

      I would say that if there is a single post office in the state that is open past the close of the polls, then that would be sufficient reason to require all ballots to be postmarked before election day.

  4. “and the right for third parties to collect ballots from voters”

    Cheat by mail.

    1. Darn right.

      No coincidence that the GOP lost all of Orange County and the Dems have a super legislative majority now that California allows ballot harvesting.

      1. Your party losing really hard isn’t per se evidence of fraud, Bob.

        1. Its the culmination of years of Dem gaming the system, “nonpartisan” redistricting, jungle primary to supress GOP votes, allowing ballot harvesting.

          Once is happenstance, twice a coincidence, twice is enemy action.

          1. Jungle primaries are not some scheme to shut out GOP – in a state that is as overwhelmingly one-party as is California, letting Republicans vote for the lesser of two evils rather than tilting at windmills arguably gives them more ability to affect outcomes.

            Anyhow, your complaints about Dems gaming the system are a far cry from your earlier assumption that California elections were all fraudulent.

            Ballot harvesting isn’t bad, unless you assume cheating based on no evidence.

            1. “Jungle primaries are not some scheme to shut out GOP”

              It leverages the Dem majority to make as many state wide offices as possible one party general election races which depressses GOP voting in other races.

              Ballot harvesting is flat out fraud.

              1. No, Brett, jungle primaries acknowledge that a Republican isn’t going to win statewide office in California and allows some GOP participation in picking in the final candidate.

                It’s unfortunate that California is basically a single party state, and thus has a bunch of electoral degeneracies that our primary-driven system is not set up for. This mitigates that some.

                A way to tell that there are no shenanigans it to look at polls of the populace and see how they jibe with the electoral outcomes. In CA they’re actually a lot better aligned than, say, South Carolina.

                1. Sarcastro, that wasn’t me, though I endorse the message.

                  There isn’t actually any constitutional requirement to have primaries, the only constitutionally significant (federal) election is the general election.

                  When our country was founded, and for a long time after, we didn’t have primaries, just general elections. We didn’t have pre-printed ballots, either. You wrote down the names of who you were voting for on a slip of paper, and you could vote for whoever you pleased.

                  Pre-printed ballots opened up the opportunity for government to rig elections by rigging who was available to vote for. Jungle primaries with write in votes outlawed just took that to the next level.

                  I’d argue that California is no longer respecting the right to vote, as they no longer let you vote for who YOU want. Yeah, maybe Republicans are screwed either way, but at least prior to the jungle primary system, they were still permitted to make the futile gesture of voting for a candidate THEY liked.

                  Now, in large parts of California, they needn’t even bother voting, since they’re not allowed to vote for a member of their party anyway.

                  1. Hah, sorry Brett and Bob!

                    Yeah, we don’t need primaries. But we have them. Given the party assymetry in California, I think this is a fairer system. And it’s hard to see how it wouldn’t drive more turnout as there will always be 2 viable candidates up there.

                    As noted in 538 the JP screws both parties, but Dems more directly:
                    https://fivethirtyeight.com/features/californias-jungle-primary-might-screw-over-both-parties/

                    Now, I do get you moral case for write-in votes being allowed. Practically, the effect is rarely very strong. But voting is not a rational process. The more leftist-oriented forums I look at that’s a really necessary pressure valve for them to remain engaged with the electoral system.

                    1. “noted in 538 the JP screws both parties”

                      Claimed without evidence you mean.

                      California’s 39th, 48th and 49th congressional districts had one Dem, one GOP, in 2018. The Senate had two Dems, just like in 2016.

                      So much for screwing both parties. Like I said:

                      “It leverages the Dem majority to make as many state wide offices as possible one party general election races which depresses GOP voting in other races.”

      2. Hey Bob, I guess you missed what happened in the burbs of Philadelphia, on Staten Island and throughout New Jersey in your attempt to come up with a theory that allows you to believe people just don’t like your team as much any more.

        How about this one instead? If you’re a pocketbook voter that usually votes Republican because they promise to keep your taxes low and instead the leadership of the party basically singles you out for a tax increase, maybe you’re going to be less inclined to vote the same way next time. In Republicans’ desperate attempt to stick it to the blue states, they’ve managed to completely alienate professional-class suburban voters, and that explains both Orange County as well as East Coast suburbs.

        (The current President doesn’t help the situation either, but even if you just look at this from a pure policy perspective it’s no surprise that Orange County flipped this last cycle.)

  5. (not legal advice)

    Okay, so the question is whether the Supreme Court per curiam creates an analogue to the postbox rule for absentee voters, holding that the vote must be counted if postmarked by election day. The answer is a resounding no. First, there are procedural grounds emphasized in the per curiam, as the Court held that the District Court awarded the remedy of post-election-postmark ballots without a formal request (the later arrival date of the ballot was requested so that the voters would “not worry” about the postmarking issues); second Purcell holds that a court shouldn’t issue confusing rules near an election, which offers an alternate ground for the order. So, first there’s procedural issues with the District Court stay, and second, there’s alternate grounds.

    In balancing the burden on electors and deciding whether strict scrutiny should apply, the Court looks to the character and magnitude of the impedance, generally allowing nondiscriminatory restrictions where there’s a sufficient regulatory interest. (Anderson, cf. Crawford) Quick look at briefs and statute says that going into this, the state statute held that the ballot must be received by 8PM on election day, Dems sought relief given plague, asking for election day plus one week, so not to worry about postmark. At this point, Reps, Legislature and Election Board had agreed that relief amounting to election day postmark would be fair. (reply at 2, motion hearing transcript at 14) District Ct. effectively changed election board policy by disregarding postmark in favor of date certain for return. Scotus therefore considered whether injunction remedy appropriately balanced regulatory interests against plague burdens, and reverted to the ex ante commission remedy of postmark. So District Ct. is effectively reviewing the as-yet unenacted remedy of postmark. The right from the Scotus per curiam is, if anything, therefore limited to the best reasonable timely administrative remedy — timely is from Purcell, reasonability from Anderson.

    Ergo, nothing in the Federal Constitution creates a postbox rule for absentee ballots. Quick take, quite likely wrong, don’t rely.

    (/not legal advice.)

    Mr. D.

  6. “We changed the mailing rule slightly in [Wisconsin case] because this was presented to us so close to the election during the height of the pandemic. There is no longer such an emergency so the lower court erred in extending the holding in [Wisconsin case] to litigation filed 6 months ahead of the election when the pandemic has subsided.”

    Easy peasy.

  7. regexp says:
    “Vote fraud is extremely rare in the US as proven out by numerous investigations by both democratic and republican administrations that say so.”

    This is the perennial Democratic narrative, that vote fraud is extremely rare. And that hasn’t been proven, despite hat regexp says; it’s unprovable, one can only investigate and attempt to find instances of it. If you don’t or find few, it’s inconclusive. One can only logically prove it does happen. For example, if you find none or few cases, it could as easily mean your search was poor, or poorly motivated.

    The most likely circumstance is that vote fraud is common and widespread. The reason to come to this conclusion is that 1). the stakes of elections are high; and 2). voting is very poorly protected. It stands to reason, to common sense, that if there is something of great value that is poorly protected, those with an interest in it will exploit the situation.

    It is so common that expressions related to vote fraud have made their way into common parlance: stuffing the ballot box, the dead voting, and so on.

    One must be completely naive to believe it doesn’t happen all the time.

    The only good way to counter vote fraud is to have strict accounting for who votes, with strict identity-checking protocols. The companion Democratic narrative to “vote fraud is rare” is that voter ID amounts to vote suppression.

    Democrats say that voter ID suppresses the votes, disenfranchises, primarily the poor and the elderly. They also claim it targets minorities. They say they “prove” this by showing that when voter ID is required, fewer of the elderly, poor, and minorities vote. But consider for moment that there is an alternative conclusion one may draw: and that is that the elderly, the poor, and minorities are the demographics whose identities are most often exploited to commit vote fraud. And the dead, of course.

    I won’t believe election outcomes in high-stakes races are conducted fairly until there’s a system at least as good as our national banking system. And yes, that will require ID, when opening your account (registering) and when conducting a transaction (voting).

    1. that hasn’t been proven, despite hat regexp says; it’s unprovable, one can only investigate and attempt to find instances of it. If you don’t or find few, it’s inconclusive. One can only logically prove it does happen.
      When you find yourself arguing you’re tautologically correct…

      It’s widespread because there’s incentives for it despite it being illegal? One could say the same thing about murder.

      It’s widespread now because we have sayings based on it being widespread in the past? This is some really, really bad reasoning.

      One must be completely naive to believe it doesn’t happen all the time.
      Well, not based on your awful arguments.

      I’m all for voter ID, if it’s free. What do you think about that? Speaking of, what are your thoughts about the franchise generally? Want to limit it to those who pay taxes or the like?

      1. “It’s widespread because there’s incentives for it despite it being illegal? One could say the same thing about murder.”

        And as it turns out, murder is widespread. as is robbery, larceny, financial fraud, and so on and so on; all illegal, with incentives.

        Voter ID should be free, while we require ID for almost everything else, including buying liquor, flying, banking, access to social programs, firearms, etc., etc.?

        And no, you jerk, I don’t want to “limit it to those who pay taxes or the like?” Where did that come from?

        1. Murder is not actually widespread. Not to the point that it’ll overturn an election.

          The point is that the cost-benefit of changing an individual vote really isn’t there.

          We see people who get along without ID all the time. It’s almost as though some people aren’t like you and I, and don’t buy liquor, fly, or bank. But they should still vote!

          I just find that many who argue that voter fraud is totally their and point at all the no evidence want to contract the franchise. Glad to realize you’re just extremely wrong, and not pushing an agenda.

          1. Your arguments are fallacious.

            1. It’s not about murder, it’s about activity for which there is an incentive despite being illegal. I’m saying vote fraud is widespread because there is a huge incentive for it;
            2. I’m not talking about changing a single vote, I didn’t mention the way I thought this was done; what I was thinking is organized vote stealing, as in ballot box stuffing and absentee/mail-in vote fraud, e.g., via ballot harvesting;
            3. “We see people who get along without ID all the time.” There are certainly people without ID in the US. The estimates vary wildly. It could be 1M, maybe 3M. (According to groups opposed to voter ID, it’s 25% of African Americans – does that make sense?) To go without ID in this country is to pretty much not participate in the economy and society. It is extreme. If these people really want to vote, let them get an ID, and sure, make it free. I don’t mind my tax dollars paying for that;
            4. I don’t want to “contract the franchise.” Where did you get that from?

            FWIW, it’s not just liquor, flying, or banking. Here’s a short list of things you need an I.D. for:

            drive a car
            test drive a car
            buy a car
            register a car
            get a car loan
            open a bank account
            take money out of the bank
            get on a plane
            buy booze
            get a drink in a bar
            rent a hotel room
            rent a car
            get into other countries
            drive in other countries
            get back into the country
            buy tobacco products
            buy a house
            rent a house
            get a mortgage
            get a library card
            get a job
            get health care
            operate a boat
            buy a gun
            buy ammunition
            carry a gun
            get a hunting license
            hunt
            get a fishing license
            fish
            buy a dog
            buy a cat
            get a dog license
            register for school
            register your kids for school

            1. 1. There is not a strong individual incentive for an individual to vote more than once.
              2. If you’re worried about organized vote stealing, then your incentive argument is misapplied. Plus, this would be a big deal and there is no evidence it has ever happened You’ve argued yourself away from reality.
              3. To go without ID in this country is to pretty much not participate in the economy and society. It is extreme. If these people really want to vote, let them get an ID, and sure, make it free.
              I mean, I agree but your contempt for people without ID is not a good look.

              You do not argue from reality or evidence, or even psychology but rather…uh, baseless reason? It’s not working very well.

              But there are plenty of people that do not have an ID. This is known through studies, not some dumb list and an appeal to incredulity.
              https://www.npr.org/2012/02/01/146204308/why-millions-of-americans-have-no-government-id

              1. Again with the straw men.

                I never said “a strong individual incentive for an individual to vote more than once.”
                The incentive is on the part of the candidate, his party, his movement, his organization. Are you being deliberately obtuse?

                I saw that npr interview. If you search more widely, and without bias, you will find estimates from under a million, to over 25 million.

                “there is no evidence”…”organized vote stealing”…”has ever happened” In my opinion, if you need evidence to believe organized vote stealing has ever occurred, you are living under a rock.

                Check this:

                https://www.whitehouse.gov/sites/whitehouse.gov/files/docs/pacei-voterfraudcases.pdf

                1078 PROVEN INSTANCES OF VOTER FRAUD
                938 CRIMINAL CONVICTIONS
                43 CIVIL PENALTIES
                74 DIVERSION PROGRAMS
                8 JUDICIAL FINDINGS
                8 OFFICIAL FINDINGS

                Here’s just one example from Indiana. The ‘money line’ is “Fraud in the 2003 East Chicago mayoral primary was widespread, and the Indiana Supreme Court ultimately overturned the election results and ordered a special election for the mayoral race that resulted in a different winner.”

                Allan “Twig” Simmons
                OUTCOME: CRIMINAL CONVICTION
                Fraudulent Use of Absentee Ballots
                Allan “Twig” Simmons, an operative for the Chicago mayor’s campaign, was charged with three counts of attempted obstruction of justice and six counts of ballot fraud after persuading individuals to let him fill out their absentee ballots in exchange for jobs. He pleaded guilty to three counts of fraudulent application, showing, examination, receipt or delivery of ballots. He was sentenced to 3 years’ probation and 100 hours of community service. Fraud in the 2003 East Chicago mayoral primary was widespread, and the Indiana Supreme Court ultimately overturned the election results and ordered a special election for the mayoral race that resulted in a different winner.

              2. So, let’s review.

                You say there’s insufficient incentive fro vote fraud. Patently silly.
                You say you agree with voter ID if it’s free. I agree.
                You say there’s no evidence that organized vote stealing has ever occurred. I say, also patently silly, but then I gave you the evidence.
                You say I don’t argue from reality or evidence – but I do! It’s you who doesn’t, obviously.
                And, I never expressed contempt for those without ID, and you’re saying I do goes to the weakness of your position.

                1. if you need evidence to believe organized vote stealing has ever occurred, you are living under a rock.

                  Haha! Because yeah, I need evidence of claims that are made. This did give me a good laugh though.

                  1. And, I provided the evidence. You are simply wrong.

                  1. You didn’t read it, I guess, because it wasn’t Trump assertions, it was a factual compilation of cases by the Heritage Foundation. It’s verifiable. You can look up each of them for yourself if you don’t believe it.

                    1. Publius: I looked up my own state (WA). I saw a couple of cases a year. Just poking around, most seem to be of the flavor ‘Betty’s husband Joe died shortly before the election, and Betty voted his ballot for him’. There were a couple of ‘Acorn people, under pressure from the national org, submitted a couple thousand fraudulent registrations for homeless people’ … but not that any ballots were cast.

                      Can you point at places in that report where more than onesie-twosey fraudulent votes were actually cast? I know of one case in the Carolinas – are there others?

                      I’m a huge fan of WA’s mail-in voting; I end up voting a lot more intelligently in the minor races (water board, school board, etc). If a dozen fraudulent votes are being cast every election from a population of a few million, that seems like an acceptable price. But if 50k fraudulent votes are being cast every election, that would change my mind. Do you have such evidence?

                    2. “Just poking around, most seem to be of the flavor ‘Betty’s husband Joe died shortly before the election, and Betty voted his ballot for him’.”

                      What you look for dictates what you can see. That IS the sort of fraudulent vote you’d actually be able to detect and prove under the current system, because you have absolute proof of the vote being cast, and the person having been dead.

                      What sort of fraud can take place without being detected, because you’re not and/or avoiding looking for it? That’s the question you have to ask.

                      Will you detect illegal aliens voting, if they have fraudulent ID, and your ID requirements are minimal, little more than perhaps a couple of utility bills?

                      Will you detect absentee ballot fraud, where somebody who routinely doesn’t vote isn’t purged from the rolls, and somebody else requests and casts an absentee ballot in their name?

                      Again, what you find depends on what you’re looking for, and if you carefully avoid looking for something, you automatically won’t find it.

  8. “Everyone, please think these issues through now, well before election day. You’re welcome.” Thank you.

    I’m still a bit concerned about the potential impact of a Surgeon General’s control over post roads and a President’s control over postal services. Having read this post, I’m now a bit concerned about the potential impact of a state health official’s or governor’s order.

    There are plenty of potential pitfalls associated with a vote-by-mail federal election… and I’m not fully convinced that the arbiter of federal succession — the US House of Representatives — is equipped to deal with them.

  9. if you need evidence to believe organized vote stealing has ever occurred, you are living under a rock.

    Living under a rock is a saying, a metaphor for when you’ve been taking in no evidence.

    I just want to highlight the reasoning we’re dealing with here.

    1. Despite your ignoring the evidence I provided! Your deliberate obtuseness is neither amusing nor enlightening. I presented the evidence for what I argued, and said the above as a parenthetical. You presented ZERO evidence for any of your assertions.
      That’s the reasoning we’re dealing with with you.

    2. You just can’t bring a substantive argument to the table, so you resort to this nonsense. Put up or shut up! Show the evidence supporting your assertions that there’s no incentive for vote fraud, and that there’s no evidence that organized vote stealing has never occurred. These assertions are admittedly difficult to prove, but they are easily disproved, as I have done.

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