If the United States had a neutral judiciary, Watson v. Republican National Committee he would have been laughed out of court months ago. The foundation of the Republican Party’s case in the Watson is that, beginning in 1845, Congress prohibited states from counting absentee ballots — and somehow no one saw this for the better part of two centuries.
To understand Watsonit’s important to understand how President Donald Trump has transformed early technological questions about election management into a neutral battleground. Until Trump rose, neither party objected that states could accept absentee ballots or other ballots cast by mail, and. even many red states they were allowing more voters to vote by mail. In fact, it is known that, in WatsonThe GOP opposes the voting law in the blood-red state of Mississippi.
In the run-up to the 2020 election, however, Trump start attacking postal voting. As a result, Democrats are now more likely to cast ballots than Republicans, so any new policy that invalidates cast ballots could skew the election toward Trump’s Republican Party.
Which brings us to a special legal theory in Watson. The GOP (along with the Mississippi Libertarian Party) claims that three federal election date laws (one governing presidential elections, one governing House elections, and one Senate election) prevent any state from counting ballots that arrive after Election Day, even if they were cast before that date.
Mississippi is one of many states that count ballots that arrive after Election Day is decided by the legislature. Under Mississippi law, ballots that are mailed before Election Day, but arrive up to five business days after the election, will still be counted. The Republican Party claims that this action violates federal law, and that only votes that arrive on or before Election Day can be counted.
This point is to say gently a a big stretch. For the most part, absentee voting did not even exist in the 19th century, so there is no evidence that Congress intended to limit it when it enacted the first law establishing a statewide Election Day in 1845.
The best early example of absentee voting occurred during the Civil War – as Justice Sonia Sotomayor pointed out during Watson at oral argument, Rhode Island and Nevada required Union soldiers in the field to give their ballots to one of their officers, who would often send the ballots to state election officials after the state’s designated Election Day.
Modern absentee voting laws began to appear in the early 20th century, and most states now allow at least late ballots to be counted. According to the Mississippi brief, “nearly 30 states and the District of Columbia to allow at least some of the votes that are cast before election day to be counted if they are received soon thereafter.”
So the basis of the Republican Party’s argument is that a widespread practice that has existed since the Civil War was outlawed in 1845, and yet no one noticed this until recently, after Donald Trump decided to campaign against mail-in voting.
It is obvious, in other words, that the GOP’s arguments within Watson it has nothing to do with what the law says, or what Congress actually intended when it enacted the law, and everything to do with the Republican Party’s hopes of gaining an electoral advantage by giving us Democratic votes. Unfortunately, at least four members of the Supreme Court — all Republicans — seemed more likely to agree with the GOP’s arguments in this case.
That said, Chief Justice John Roberts and Justice Amy Coney Barrett seemed skeptical of the Republican Party’s arguments. So the most likely outcome in Watson it’s a 5-4 decision to reject this attempt to throw out validly cast ballots. But it’s sad that any judge, whether Democratic or Republican, will take the GOP’s cockamamie legal arguments seriously.
So what is the Republican Party’s reasoning for throwing legitimate votes in the trash?
Summary of the GOP raises three legal challenges to Mississippi’s 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 laws provided in Watson have different words, they all do more or less 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 GOP’s basic argument is that the word “election,” when used in this context, refers to an event where all votes are cast by voters and tallied by election officials. So if Congress sets an “election day” the filing and assembly must take place on that day.
Some of the Republican judges seemed to simply assume that the GOP’s definition of “election” was correct, and pressed Mississippi on why its law does not require a state official to collect ballots on Election Day. Justice Samuel Alito, for example, argued that the United States Postal Service is not part of the state, and therefore Mississippi law allows ballots to be cast by voters without delivering them to a state official. Justice Neil Gorsuch also appeared to be offended by a hypothetical law that would have allowed voters to cast their ballots by publicly certifying a notary public (someone who is not a government official).
Of course, as Sotomayor pointed out, Alito’s and Gorsuch’s objections are inconsistent with long-standing historical practice — in the Civil War, it was common for private soldiers to submit their ballots to a military official, for example, not a state election official.
The four justices most hostile to Mississippi’s law, however, focused primarily on policy issues unrelated to what the law says. Alito and Justice Brett Kavanaugh, for example, expressed concern that some voters may lose faith in the election if the winner of the election appears to change after the late ballots are counted.
Gorsuch, meanwhile, raised a baroque hypothesis involving a scenario where a serious 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 reach the hands of government officials.
Based on questions from the justices, Justices Clarence Thomas, Alito, Gorsuch, and Kavanaugh all appear to support the GOP’s attempt to throw out late-arriving ballots.
That said, two Republicans, Roberts and Barrett, seemed more skeptical of their party’s position.
Roberts was silent during Monday’s argument, but a few of his questions focused on his concern that, if the GOP’s reading of the law is correct, then it would bar states from allowing voters to vote. before Election Day. So, unless Roberts is willing to ban all early voting, including absentee voting, it seems unlikely that he will support the GOP in Watson.
Barrett’s questions, meanwhile, were narrower and more technical, but often seemed skeptical of the GOP’s legal arguments. In response to Gorsuch’s hypothetical about voters trying to recall their ballots after Election Day, for example, Barrett suggested that his Court could simply declare such recall illegal without banning late ballots from being counted altogether.
Similarly, in response to the GOP’s argument that states typically did not allow absentee voting 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 was illegal or prohibited by federal law.
It’s more likely than not, in other words, that the Supreme Court will reject the Republican Party’s embarrassingly weak arguments Watsonbut that result is not guaranteed. It seems to depend on whether the three Democratic justices can uphold Roberts and Barrett. And an alarmingly large group of judges seem eager to sign off on their political party’s attempt to throw away thousands of valid votes, many of which will be cast by Democrats.
