Election 2020, Let Us Thwart the Will of the People by Claiming Original Intent Rules

We live in a country that is governed by a representational democracy. What that means is that we make no laws directly except through ballot measures for things such as bonds or constitutional amendments and the like.  Instead we vote to choose people to carry out our political will in governing our large and diverse country. They create the laws because we through our Constitution have entrusted them with that task. Our vote in a representational democracy is thus the most critical embodiment of our political voice.  

In a representative democracy the goal should be to encourage and aid all enfranchised citizens to vote. Actions during a health pandemic limiting the ballot collection boxes to one per county in dense urban counties is not consistent with enfranchisement. During a pandemic when the United States Postal Service is having delivery problems, limiting the counting of ballots to only those received by the closing time of the polls on election day, regardless of the postmarked date, also is not in furtherance of voter enfranchisement. Disallowing a ballot from being counted because of the lack of a postmark, when the ballot is unambiguously received before election day is not in the furtherance of enfranchisement. All of these are instead acts of voter suppression, of disenfranchisement. 

 

We are a diverse nation of people of varying intellectual abilities, varying language skills, varying physical infirmities limiting mobility and varying other constraints limiting access to our actively physically voting on election day in a fixed polling station. Given that all American citizens are deemed equal under the law, we, our representatives and our courts should be working to make voting easier. We should not be decrying established mechanisms for voting outside of fixed polling places as tools of fraud. If we believe that each and every citizen should vote, we should make registration up until election day the norm.  If we believe that every citizen should vote we should be counting ballots mailed in by the date of the election day even if they arrive up to three days later. If we believe every citizen should vote, we should be allowing ballot collection boxes be placed in multiple secure locations in urban areas.

 

We are in the midst of a pandemic, a crisis not seen in over a hundred years.  We are in a situation where exposure to the virus, which is spread by aerosolization of viral load in droplets of breath, in confined poorly ventilated places (like many polling stations) raises the specter of death and serious disability to a large portion of the voting public should they enter those spaces. Normal rules need to be varied to protect citizens who have the same right as any other citizen to vote.

 

Courts have always had the power to fashion remedies where the strict text of written laws fails to address anomalous situations, it is called equitable jurisdiction.  In a pandemic many laws and rules as codified are just not adequate to meet the circumstances head on. In a pandemic the respective interpretive tacts of originalism and strict constructionism can’t rise to the immediate reality.  Thus, learned jurists, and panels of jurists are trying their best to fashion remedy impediments to our core Constitutional right, that of voting in a fair and free election. This is not election fraud.  This is not stealing an election.  This is instead protecting the essential of our constitutional rights.

 

I am afraid that with the elevation of Justice Barrett to the high court, she an adherent of the originalism doctrine, the issues of the pandemic will be turned into a political weapon for the right. I believe based on what I have seen so far from her, and from the other Trump justices, we are screwed in terms of promoting voter rights in this election.