The basis of the arguments of the Republican Party in Watson v. Republican National Committee it’s that, nearly 200 years ago, Congress banned states from counting the thousands of votes cast each year in modern elections — and somehow. no one discovered this fact until 2024.
The case turns on three federal laws that set the dates on which elections for the president, the White House and the US Senate must be held. Although the three laws have different wording and were enacted at different times, they all essentially do the same thing. The the law governing Parliament electionsfor example, it provides that “The Tuesday next after the 1st Monday in November, in every year so numbered, shall be designated as election day.”
The first version of these rules was adopted in 1845When the Parliament set the date for the presidential election.
When this 1845 law was passed, American elections looked very different than they do today. Almost all voters cast their ballots in person, and they did so in their home communities. Most of the United States did not allow voters to vote away from home until the Civil War, when Union soldiers were allowed to vote from the field. Modern absentee voting, where voters who are not in their district can vote by mail, largely did not exist until the early 20th century.
And yet, inside Watsonplaintiffs – the The Republican Party and Libertarian Party of Mississippi – they claim that when Congress set the date for federal elections decades ago, it actually required states to throw out thousands of ballots sent more than a century later. Many states, including Mississippi, have similar laws Watsonallow ballots sent before Election Day, but arriving after that date to be counted as any other ballot. The GOP argues that these votes must be thrown out instead.
If Watson if the plaintiffs win, the likely effect will be to skew the election in favor of the Republican Party by canceling votes cast by Democrats. In recent elections, Democrats have been more likely to vote by mail than Republicansand Republican President Donald Trump has even campaigned against laws that broadly allow mail-in voting. So, if Republicans convince the Supreme Court to throw out some mail-in ballots, the votes cast will be disproportionately Democratic.
The idea that Congress intended to regulate absentee voting by mail, a practice that did not exist until the 20th century, when it dated federal elections to the 19th century, is unusual, and in most cases would not stand legal scrutiny. But in 2024, the panel of three of the judges were neutral in the country on the side of the GOP in this case. The author of the opinion, Justice Andrew Oldham, may be one more overturned judge over any federal appellate court in the country. Oldham frequently issues opinions that favor Republican and conservative interests and that the Supreme Court then overturns. Judges — who typically hear only about 60 cases in each of their annual terms — typically rejecting Oldham’s decisions in two or three cases a year.
In fact, in other words, the Supreme Court is likely to reject the decision of the lower court in Watson as the product of an unusually strict judge whose overturning record suggests a style of reaching beyond what the law allows. Although Republicans enjoy a 6-3 majority on the Supreme Court, Oldham regularly writes opinions that go too far even for most Republican justices. And the righteous ones to have it is not has been shame about changing Oldham before.
Yet, this is the same Supreme Court that held that Donald Trump is allowed to use the power of the presidency to commit crimes. So there is, at the very least, some risk that Republican judges will side with the GOP’s bid to disenfranchise thousands of American voters.
Plaintiffs’ arguments in Watson they are appropriate
Watson activates three federal statutes that set dates by which federal “elections” must be held. The GOP and Libertarian Parties claim that the term “election” refers to an event where all votes must be reached within a certain period of time.
Under Mississippi law in the matter of Watsonno vote will be counted unless it was mailed on or before Election Day prescribed by federal law, but ballots that are sent in at the right time will be counted if they arrive within five days of the election. The plaintiffs claim that this process is illegal because the “election” must be completed by the end of Election Day, and the “election” continues if not all votes have been received by the government. As the Republican party puts it short“until all the votes that will be counted in the election are under the protection of the Government, the election is still going on.”
This argument is, to put it mildly, questionable.
In Foster v. Love (1997) the Supreme Court relied on an 1869 dictionary definition of the word “election,” which defined the word as “the act of choosing a person to fill an office.” In his shortMississippi cites many other 19th century dictionaries that define the word “election” similarly. One person, for example, defines this word as “the act of electing someone to fill an office or job, with any manifestation of favoritism; another defines it as “the act or public ceremony of electing government officials.”
Therefore, the word “election” means a choice, which is made by voters. Absentee voters make this choice when they fill out their ballots and mail them to the state. They don’t make this choice until a few days later, when state election officials receive the ballots. Elections end when voters stop making this choice, not when state officials complete ministerial work such as collecting votes, counting them or declaring a winner.
In general, the plaintiffs in Watson give three reasons to answer. The first, which appears only in the GOP brief, is so confusing that I have to admit I can’t decipher it. It appears to be turning on the distinction between what GOP lawyers call “voter elections,” “candidate elections,” and “State elections.” But these provisions do not appear in any relevant legislation and the GOP does not cite any legal sources that use them either.
Instead of trying to summarize an argument that, I admit, I cannot explain, I will simply say that this argument. appears on pages 16–21 of the GOP brief and invite my more learned readers to try to understand if they can.
The plaintiffs’ second argument turns out to be in line Guardianwhich states that “when the federal statutes speak of the ‘election’ of a Senator or Representative, they expressly refer to joint actions of voters and officials it was intended to make the final selection of the office holder.” According to the GOP brief, this “concerted action” requirement is not met until the “State takes control” of the vote, because otherwise state election officials have played no role in the election process.
But this argument is weak. When an absentee voter uses that authorization, they receive a ballot that was created and sent to them by state officials, and they choose from a list of candidates qualified to run for office in compliance with state election law. All marked ballots, whether cast by mail or in person, exist because of the “coordinated actions of voters and officials,” including official actions that take place long before any ballot is cast. Officials print the ballots and voters mark their choice on them.
That brings us to Watson The third argument of the plaintiffs, which is by far their strongest claim. These plaintiffs are asking the judges to apply a a much criticized method of legal interpretation which currently only applies in Second Amendment cases of federal election law.
Republicans want to extend one of the Supreme Court’s most criticized decisions to election cases
In New York State Rifle & Pistol Ass’n v. Bruen (2022), the Republican majority on the Court held that all modern gun laws are unconstitutional unless the government can prove that a similar law existed when the Constitution was ratified. Thus, Bridge it aims to keep gun laws in place in the 18th century, and prevents state and federal lawmakers from being creative.
This decision is difficult to apply, in part because the Court has never adequately explained how the modern law must resemble the old law in order for the modern law to survive. At least a dozen federal judges from both political parties have published opinions criticize Bridge as unworkable. In the words of one Trump-appointed judge, Bridge“The inconsistent and unchanging standard” has “created mountains of work for the district courts that must now deal with it.” Bridge—a related argument in almost every criminal case in which a firearm is available.”
However, the summary of the Republican Party he quotes Bridge four timesand urges the Supreme Court to expand its problematic trials in Bridge for election. Their argument seems to be that, because the 1845 election was usually held in person, and all votes were tallied by the end of the day, it follows that all modern elections must be conducted this way. As GOP lawyers put it, “that States went to the trouble of ensuring that ballots were received by Election Day ‘reveals a consensus’ that such efforts were necessary.”
If taken seriously, this motion would overturn Mississippi’s law allowing absentee ballots that arrive within five days of the election to be counted. Again, mail-in ballots are largely a 20th-century invention, and voters usually had to cast their ballots in their home communities until the United States gave them to Union soldiers during the Civil War. Modern elections also often feature a web of laws governing provisional ballots, voter identification, online voter registration, and other practices that did not exist in 1845.
All these laws may also be in jeopardy if the Supreme Court extends the deadline Bridge to federal election law.
Complainants’ Bridge the argument also reads a broad meaning into federal statutes that do not imply that Congress had such ambitious goals. A statute that simply states that “the Tuesday next after the 1st Monday in November, in every year so numbered, shall be set as election day” gives no indication that Congress intended to suspend election procedures from 1845 and prohibit such innovations as absentee ballots (or, for that matter, absentee ballots on ballots that are late to be counted even if counted).
In short, the arguments of the plaintiffs in Watson they are embarrassing. Some of them are literally useless. And even scrutinized arguments fall apart after just a few minutes of legal research. It is very difficult to read the plaintiffs’ briefs and come away thinking their arguments are made in good faith.
Hopefully, that means the GOP doesn’t have five votes to win Watson.
