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Dumb take. All rules and deadlines have specific externalities and incentivize particular kinds of behavior. That’s why you design them in such a way so as to minimize negative externalities and maximize the incentives of the behavior you want to encourage 1/ https://twitter.com/baseballcrank/status/1322011819725250561">https://twitter.com/baseballc...
I have mentioned before the “mailbox rule” used in contracts, which uses the postmark, rather than receipt date, to determine acceptance of an offer. Why? Because using the postmark creates certainty for both parties and thereby maximizes efficiency in transactions 2/
If you were relying on the receipt date, you’d either have to increase the cost of the transaction by forcing the acceptee to use a means of delivery that was absolutely accurate, or you’d risk disagreement about when it was received and potential litigation as a result 3/
The point here us that *especially* in voting, you’d want to DECREASE uncertainty and potential for litigation, while at the same time INCREASE the incentive for people to exercise their right to vote. And if you had to make a trade of, I’d think you’d tip toward the latter 3/
So when you look at how courts are coming down on this, use the framework above and ask which values and behaviors they are maximizing/incentivizing — that’ll tell you everything you need to know. (BTW I’m so glad @YaleLawSch taught me to understand the theory behind rules!)
P.S. Note that the above idea is exactly the theory that Kavanaugh is teeing up from his WI opinion: But his idea is that you must maximize “certainty” on Election Day itself, above all else (including the exercise, and counting of, the fundamental right to vote). 1A/
This is an upside down reading of the Constitution, which says nothing about “Election Day certainty” but does, of course, create an explicit fundamental right. It also makes no sense from just a math point of view, since by definition, the # of ballots received after Nov.3 2A/
Will decrease, since the voting has ended and there are only a finite # of ballots that could theoretically be “in the mail” at that point. Even if you had a huge influx right *on* Election Day, you might have a big bath arrive X days after, but then decrease from there 3A/
So this idea that the results will be “flipping” endlessly because ballot after ballot keeps rolling in makes no sense. At most, you’d have uncertainty for X days, where X represents average/reasonable delivery time for mail, and it looks like the court extensions recognized that
