If the United States had a nonpartisan judiciary, Watson v. Republican National Committee would have been laughed out of court months ago. The premise of the Republican Party’s lawsuit in Watson is that, beginning in 1845, Congress banned states from counting many absentee ballots — and somehow no one noticed this for the better part of two centuries.
To understand Watson, it’s important to understand how President Donald Trump has transformed previously technocratic questions about election administration into a partisan battlefield. Until Trump’s rise, neither party really contested that states may accept absentee ballots or other ballots cast by mail, and even many red states were allowing more and more voters to cast their ballot by mail. Indeed, it’s notable that, in Watson, the GOP challenges a voting law in the blood-red state of Mississippi.
In the lead-up to the 2020 election, however, Trump started attacking voting by mail. As a result, Democrats are now much more likely to mail their ballots than Republicans, so any new policy that invalidates mailed ballots is likely to skew elections toward Trump’s Republican Party.
Which brings us to the specific legal theory in Watson. The GOP (along with the Libertarian Party of Mississippi) claim that three federal laws which set the date for federal elections (one governing presidential elections, one governing House elections, and one governing Senate elections) preclude any state from counting a ballot that arrives after Election Day, even if it was mailed prior to that date.
Mississippi is one of many states that counts some ballots that arrive after the congressionally determined Election Day. Under Mississippi law, ballots that are mailed by Election Day, but that arrive up to five business days after the election, will still be counted. The Republican Party claims this practice violates federal law, and that only ballots that arrive on or before Election Day may be counted.
This argument is, to put it mildly, a huge stretch. For the most part, absentee balloting didn’t even exist in the 19th century, so there is no evidence that Congress intended to limit it when it enacted the first law setting a nationwide Election Day in 1845.
The best early example of absentee balloting occurred during the Civil War — as Justice Sonia Sotomayor pointed out during the Watson oral argument, Rhode Island and Nevada required Union soldiers in the field to give their ballots to one of their officers, who would often mail those ballots to state election officials after the federally determined Election Day.
Modern-day absentee voting laws began to appear in the early 20th century, and many states now allow at least some late-arriving ballots to be counted. According to Mississippi’s brief, “nearly 30 States and the District of Columbia allow at least some ballots that are cast by election day to be counted if they are received soon after that.”
So the premise of the Republican Party’s argument is that a widespread practice that has existed since the Civil War was actually made illegal in 1845, and yet no one noticed this until very recently, after Donald Trump decided to campaign against voting by mail.
It’s fairly obvious, in other words, that the GOP’s arguments in Watson have nothing to do with what the law actually says, or what Congress actually intended when it enacted that law, and everything to do with the Republican Party’s hope to gain an electoral advantage by tossing out Democratic ballots. Unfortunately, at least four members of the Supreme Court — all Republicans — seemed very likely to embrace the GOP’s arguments in this case.
That said, both Chief Justice John Roberts and Justice Amy Coney Barrett seemed skeptical of the Republican Party’s arguments. So the most likely outcome in Watson is a 5-4 decision rejecting this attempt to trash lawfully cast ballots. But it is unnerving that any judge, whether Democratic or Republican, would take the GOP’s cockamamie legal arguments seriously.
So what is the Republican Party’s argument for tossing lawful ballots in the trash?
The GOP’s brief raises three legal objections to the Mississippi law. But even the four justices most closely aligned with the Republican Party seemed to take only one of those arguments seriously.
Although the three statutes at issue in Watson have different wording, they all do more or less the same thing. The law governing House elections, for example, provides that “the Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election.”
The GOP’s primary argument is that the word “election,” when used in this context, refers to an event where all ballots are cast by voters and collected by election officials. So if Congress sets a “day for the election” both the casting and the collection must happen on that day.
Some of the Republican justices appeared to simply assume that the GOP’s definition of an “election” was correct, and pressed Mississippi on why its law does not require a state official to collect the ballot by Election Day. Justice Samuel Alito, for example, complained that the US postal service is not part of a state, and therefore Mississippi’s law allows ballots to be cast by voters without delivering them to a state official. Justice Neil Gorsuch also seemed bothered by a hypothetical law that would allow voters to cast their ballot by certifying them with a notary public (someone else who is not a state official).
Of course, as Sotomayor pointed out, Alito and Gorsuch’s objections are out of step with longstanding historical practice — in the Civil War, it was common for individual soldiers to deliver their ballot to a military officer, for example, not a state election official.
The four justices most hostile toward Mississippi’s law, however, focused primarily on policy considerations that are irrelevant to what the law actually says. Both Alito and Justice Brett Kavanaugh, for example, fretted that some voters might lose faith in elections if the winner of an election seems to change after late-arriving ballots are cast.
Gorsuch, meanwhile, spun out a baroque hypothetical involving a situation where a damning scandal involving a candidate is discovered the day after an election, and voters somehow get the US Post Office to recall their ballots before they arrive in the hands of state officials.
Based on the justices’ questions, Justices Clarence Thomas, Alito, Gorsuch, and Kavanaugh all seem likely to back the GOP’s attempt to toss out late-arriving mailed ballots.
That said, two Republicans, Roberts and Barrett, appeared more skeptical of their party’s position.
Roberts was fairly quiet during Monday’s argument, but his few questions focused on his concern that, if the GOP’s reading of the statute is correct, then it would also forbid states from allowing voters to cast a ballot before Election Day. Thus, unless Roberts is prepared to ban all early voting, including absentee balloting, it appears unlikely that he will back the GOP in Watson.
Barrett’s questions, meanwhile, were narrower and more technical, but they mostly seemed skeptical of the GOP’s legal arguments. In response to Gorsuch’s hypothetical about voters attempting to recall their ballots after Election Day, for example, Barrett suggested that her Court could simply declare such a recall illegal without banning late-arriving ballots from being counted altogether.
Similarly, in response to the GOP’s argument that states ordinarily did not permit absentee balloting in the 19th century, Barrett said that was probably because they thought it was “good policy” to require voters to vote in person, and not because they thought voting by mail is illegal or restricted by federal law.
It is more likely than not, in other words, that the Supreme Court will reject the Republican Party’s embarrassingly weak arguments in Watson, but that outcome is not guaranteed. It appears to hinge on whether the three Democratic justices can hold onto both Roberts and Barrett. And an alarmingly large contingent of the justices appear eager to sign onto their political party’s attempt to toss out thousands of lawful ballots, most of which will be cast by Democrats.
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