Voting in a Time of Covid: A Question about Judicial “Originalism”

Voting in a Time of Covid: A Question about Judicial “Originalism”

The originalist theory of legal interpretation holds that judges, in reviewing the implementation of a statute, should be guided by the “plain meaning” of its language at the time it was adopted.  This is in opposition to the notion of a “living law”, whose interpretation should evolve as the conditions it addresses evolves.  For instance, originalists are appalled by Supreme Court decisions like Roe v Wade, since nowhere does the Constitution establish a right to bodily privacy, nor could the framers have plausibly thought back in the eighteenth century that the language they drafted encompassed such a right.  It is one interpretation of the living law view, on the other hand, that, as governments increasing acquired the administrative power to regulate our intimate lives, the zone of restriction implicit in the first amendment should be extended to measures that impinge on the freedom to control one’s own body.

Until his death the most vocal supporter of originalism on the Court was Antonin Scalia; now we are looking at the nomination of Amy Coney Barrett, who describes herself as an acolyte of Scalia and a resolute defender of his philosophy.

Here is a case I would bring up if I were questioning Barrett.

The rules governing elections are established at the local and state levels, not federal, but the Supreme Court is the final arbiter of how they might be interpreted.  It is common for jurisdictions to have regulations prohibiting interference with or attempts to influence voters at voting sites.  In every instance I’ve seen this is expressed in terms of physical distance, something like “within 100 yards of the polling place”.  In enforcement this has always implied a radius extending from the door voters use to enter the building in which they will cast their vote.  You can’t hold signs and shout at voters, much less accost them, within so many feet of that door.



But voting has changed during the pandemic.  Social distancing has forced election officials to disperse voting booths, reducing the number of booths per site.  Lines also have to be distanced, and they now stretch out for many blocks, even the better part of a mile, from the door.  Because of this, voters waiting to cast their ballot are often beyond the specific distance specified in the law for prohibition of campaigning.

Should these prohibitions be interpreted according to their plain language, which unambiguously permits campaigning beyond a specified radial distance, or should they be understood more flexibly in terms of the changed circumstances of voting in a pandemic?

There is an easy way out, but on a little reflection, it is obvious it doesn’t work.  That is, an originalist could say, “It’s clear that the purpose of the statute is to protect voters during the process of voting, which includes waiting to vote.  With the pandemic, that purpose can and should be served by overriding the numerical stipulation and extending the prohibition to the entire voting line, no matter how long.”

Sounds good, but consider that (a) the authors of these laws could have used a qualitative description of the prohibited zone (“in close proximity to voting booths and lines”) but used a quantitative one instead, and (b) this is not the first pandemic; those in a position to write or amend these laws were familiar with the Spanish Influenza of 1918-19, where similar adaptations needed to be made.  Really, only one of two possibilities exist: either the laws should be taken at their word and judges, while they may lament how poorly they were written, can only enforce them literally, or it should be assumed that those drafting them expected that future generations would understand their purpose and apply them flexibly.  In the second possibility, the numerical demarcations were intended to convey a broader intent: you might say “within 100 yards” not to get out the tape measure but to express the idea that the immediate vicinity of the voting site should be differentiated from the community surrounding it.  That’s not a strange way of communicating intent.  Lots of rules parents set for children work that way.  “Be home by 11 pm” means you need to have a good reason to stay out later.  We could interpret voting regulations that way, but that puts us in living law-land.

So I’d ask Barrett about the enforcement of voting interference statutes during the pandemic and ask a follow-up question when she tries, as she likely would, to give the easy-but-inadequate response about intent.

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