A fringe attack on voting rights just got four votes on the Supreme Court
A fringe attack on voting rights just got four votes on the Supreme Court
The premise of the Republican Party’s lawsuit in Watson v. Republican National Committee is that three 19th-century federal laws require thousands of lawfully cast ballots to be tossed in the trash — and somehow no one noticed this fact for the better part of two centuries.
In a nonpartisan judiciary, the case would have never reached the Supreme Court. It would have been unanimously rejected by lower courts and ignored by the justices. But, in the highly partisan judiciary that governs Donald Trump’s America, the Republican Party convinced four justices to sign onto their attempt to trash numerous ballots.
Watson, in other words, is less a victory for democracy and the rule of law than it is a warning of what could come if Trump gets to replace even one more member of the Supreme Court. No reasonable judge could agree with Justice Samuel Alito’s dissent, but four of the Court’s nine justices did so, regardless.
The majority opinion in Watson is straightforward and clearly correct
The case involves three federal laws that set the date for presidential, US House, and US Senate elections. While these statutes were enacted at different times and use different wording, they all do more or less the same thing. The statute governing House races, for example, which was enacted in 1845, provides “the Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election.”
The Republican Party’s argument in Watson (which was also made by the Libertarian Party of Mississippi) is that this law prohibits states from counting absentee ballots that are mailed prior to federally determined Election Day, but that arrive sometime after that date. Mississippi, the defendant in the case, is one of 30 states that allows at least some mailed ballots that arrive after Election Day to be counted. In Mississippi, voters enjoy a five-day grace period, so long as the ballot is mailed prior to the deadline.
It should go without saying that, when Congress set the Election Day in 1845, it did not intend for literally everything involving an election to occur on that day. Prior to an election, states must determine which candidates shall appear on the ballot, print those ballots, distribute them to polling places and individual voters, register voters, and perform numerous other tasks. Many states also allow for early voting.
Similarly, after Election Day, states must finish counting the ballots, verify that its initial count was accurate, certify the results of the election, and perform other various tasks. The premise of the Republican Party’s lawsuit is that the task of gathering the ballots that have already been cast is somehow special, and it must happen on Election Day.
But there’s no legal support for this position. As Justice Amy Coney Barrett writes for herself, her three Democratic colleagues, and Chief Justice John Roberts, when federal law set the date for the “election,” it “set the day when the electorate must make its choice.” Voters must actually cast their ballots by the deadline, but the same deadline does not apply to the ministerial task of gathering all those ballots into a state office where they will be counted.
Moreover, as Barrett points out, other federal laws simply assume that states get to decide what happens to late arriving ballots. The Uniformed and Overseas Citizens Absentee Voting Act, for example, provides that overseas military voters ballots must be delivered to state election officials “not later than the date by which an absentee ballot must be received in order to be counted in the election,” and that the ballot will not count if it arrives after “the deadline for receipt of [that] ballot under State law.”
The fact that Watson v. Republican National Committee was taken so seriously by the federal judiciary, and ultimately the Supreme Court, is a stain on that institution.
That’s powerful evidence that Congress thought that states, and not a 19th-century federal law, decide the deadline when absentee ballots must arrive.
The most powerful evidence, however, is the fact that, for more than a century, states have counted absentee ballots that arrive after Election Day, and no one has ever thought this was legally problematic. During the Civil War, Barrett writes, Nevada and Rhode Island tasked military officers “with collecting soldiers’ ballots on election day and then sending the ballots to state election officials for counting— which meant that ballots were not received into official custody until after election day.”
Similarly, during the 20th century, numerous states started allowing voters to mail their ballots, and states that permitted late-arriving ballots to be counted were allowed to count them. In the 1940s, for example, seven states enacted new laws allowing some late-arriving ballots to be counted, but “Plaintiffs offer no evidence that any of these laws was ever even challenged under the election-day statutes.”
And it’s not like the federal laws setting Election Day are particularly obscure. Every state complies with these laws, as every single state holds their election on the same day — with some variations to the rules governing early voting, absentee ballots, and similar matters. For more than a century, states across the country have read the federal law, concluded that it permits late-arriving ballots to be counted, and enacted laws that said as much.
But, in Watson, four Republican justices claim that they know better than every lawyer and state lawmaker who read the federal law next to state laws like Mississippi’s and concluded that the state law is permitted.
So what does the dissent actually say?
Much of Alito’s dissent echoes familiar Republican Party arguments that mail-in voting is a bad idea. He spends several pages of his opinion arguing, for example, that if late-arriving ballots are counted, that could lead to a candidate who was down in early returns coming back to win an election. And that would somehow cause people to think that voter fraud was responsible for this flip.
Of course, if the Republican Party thinks this is a good reason to eliminate laws like Mississippi’s, it can always lobby Congress or the Mississippi legislature to do so. But the fact that Alito and his Republican Party think that Mississippi’s law is a bad idea is irrelevant to the question of whether it is preempted by current federal law.
To the extent that Alito tries to make a legal argument for his position, he primarily argues that all ballots must be gathered by the state on Election Day because “this is what the election-day statutes required when all voting occurred in person.”
Alito is correct that, prior to the Civil War, elections were typically held on a single day and people who were not present in their home state for that election were out of luck. Absentee balloting did not become widespread until the war, because it was necessary for Union soldiers in the field to cast their ballots.
But the fact that America did not have absentee ballots in 1845 does not mean that, when Congress set the date for elections in that year, it intended to lock in place 180-year-old election practices. As Barrett writes, Alito’s argument boils down to a claim that “because we are governed by 19th-century election-day laws, we are also governed by 19th-century voting practices.” That theory would abolish a host of modern-day practices that did not exist in 1845, including early voting.
The fact that Watson was taken so seriously by the federal judiciary, and ultimately the Supreme Court, is a stain on that institution. The actual premise of this lawsuit is that, because the Republican Party controls six seats on the Supreme Court, it could simply ask the justices to implement their preferred rules for federal elections, and the Court would do so regardless of whether there is any legal support for the GOP’s position.
In the end, however, only four justices concluded that the Republican Party gets anything it wants, regardless of what the law says.
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