The Supreme Court case attempting to sabotage voting by mail, explained

The premise of the Republican Party’s arguments in Watson v. Republican National Committee is that, nearly 200 years ago, Congress banned the states from counting thousands of the ballots that are cast every year in modern-day elections — and somehow no one noticed this fact until 2024.

The case turns on three federal laws which set the date when elections for president, the US House and the US Senate must be held. While the three laws are worded differently and were enacted at different times, they all do basically the same thing. The statute 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 first version of these laws was enacted in 1845, when Congress set the date for presidential elections.

When this 1845 law was passed, US elections looked very different from how they do today. Nearly all voters cast their ballots in person, and they did so in their home communities. Most of the United States didn’t allow voters to cast a ballot away from home until the Civil War, when Union soldiers were allowed to vote from the field. Modern-day absentee voting, where voters who are absent from their district may cast a ballot by mail, largely did not exist until the early 20th century.

And yet, in Watson, the plaintiffs — the Republican Party and the Libertarian Party of Mississippi — claim that when Congress set the date for federal elections many decades ago, it effectively required states to toss out thousands of mailed ballots more than a century later. Many states including Mississippi, whose law is at issue in Watson, permit ballots that are mailed prior to Election Day, but that arrive after that date has passed, to be counted just like any other ballot. The GOP argues that these ballots must be tossed out instead.

If the Watson plaintiffs prevail, the very likely effect would be to skew elections in the Republican Party’s favor by canceling votes cast by Democrats. In recent elections, Democrats have been more likely to vote by mail than Republicans, and Republican President Donald Trump has even campaigned against laws broadly authorizing voting by mail. So, if Republicans convince the Supreme Court to toss out some of the ballots cast by mail, the trashed ballots will be disproportionately Democratic.

The idea that Congress intended to regulate absentee voting by mail, a practice that barely existed until the 20th century, when it set the date for federal elections in the 19th century, is an extraordinary stretch, and in most circumstances would not survive serious legal scrutiny. But in 2024, a panel of three of the most partisan judges in the country sided with the GOP in this case. The author of that opinion, Judge Andrew Oldham, may be the single most reversed judge on any federal appeals court in the country. Oldham frequently hands down opinions that favor Republican and conservative interests and that the Supreme Court then reverses. The justices — who typically only hear about 60 cases in each of their annual terms — typically reject Oldham’s decisions in two or three cases a year.

Realistically, in other words, the Supreme Court is likely to reject the lower court’s decision in Watson as the product of an unusually aggressive judge whose track record of reversals suggests a pattern of reaching beyond what the law supports. Although Republicans enjoy a 6-3 majority on the Supreme Court, Oldham frequently writes opinions that go too far even for many of the Republican justices. And those justices have not been shy about reversing Oldham in the past.

Still, this is the same Supreme Court which held that Donald Trump is allowed to use the powers of the presidency to commit crimes. So there is, at least, some risk that the Republican justices will back the GOP’s bid to disenfranchise thousands of American voters.

The plaintiffs’ arguments in Watson are risible

Watson turns on three federal laws that set the date when a federal “election” must take place. Both the GOP and the Libertarian Party claim that the word “election” refers to an event where all of the ballots must arrive by a certain deadline.

Under the Mississippi law at issue in Watson, no ballot will be counted unless it was mailed on or before the Election Day set by federal law, but ballots that are mailed on 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 an “election” is ongoing if not all ballots have been received by the state. As the Republican Party puts it in its brief, “until all ballots to be counted in that election are in the State’s custody, the election remains ongoing.”

This argument is, to put it mildly, dubious. 

In Foster v. Love (1997) the Supreme Court relied on an 1869 dictionary definition of the word “election,” which defined that word as “the act of choosing a person to fill an office.” In its brief, Mississippi quotes numerous other 19th-century dictionaries which define the word “election” similarly. One, for example, defines this word as “the act of choosing a person to fill an office or employment, by any manifestation of preference;” another defines it as “the act or the public ceremony of choosing officers of government.”

Thus, the word “election” refers to a choice, which is made by voters. Absentee voters make this choice when they fill out their ballots and mail those ballots to the state. They do not make this choice days later, when state election officials receive those ballots. An election ends when voters stop making this choice, not when state officials complete a ministerial task such as gathering the ballots, counting them, or announcing the winner.

Broadly speaking, the plaintiffs in Watson make three arguments in response. The first, which appears only in the GOP’s brief, is so convoluted that I must confess that I am unable to parse it. It appears to turn on a distinction between what the GOP’s lawyers label a “voter’s election,” a “candidate’s election,” and a “State’s election.” But these terms do not appear in any relevant statute and the GOP does not cite any legal sources that use them either.

Rather than attempting to summarize an argument that, I admit, I am unable to parse, I will simply say that this argument appears on pages 16–21 of the GOP’s brief and invite my more masochistic readers to attempt to make sense of it if they can.

The plaintiffs’ second argument turns on a line in Foster, which states that “when the federal statutes speak of ‘the election’ of a Senator or Representative, they plainly refer to the combined actions of voters and officials meant to make a final selection of an officeholder.” According to the GOP’s brief, this “combined actions” requirement is not met until “the State takes custody” of a ballot, because otherwise state election officials haven’t played any role in the election process.

But this argument doesn’t hold up. When an absentee voter exercises the franchise, they receive a ballot that was designed and mailed to them by state officials, and they choose from a list of candidates who qualified to run for office by complying with state election law. All marked ballots, whether they are cast by mail or in person, exist because of the “combined actions of voters and officials,” including official actions that take place long before any ballots are cast. The officials print the ballots and the voters mark their choices on them.

That brings us to the Watson plaintiffs’ third argument, which is far and away their most radical claim. These plaintiffs ask the justices to apply a widely criticized method of legal interpretation that is currently only used in Second Amendment cases to federal election law.

Republicans want to expand one of the Supreme Court’s most widely criticized decisions to election cases

In New York State Rifle & Pistol Ass’n v. Bruen (2022), the Court’s Republican majority held that modern-day gun laws are all unconstitutional unless the government can prove that a similar law existed when the Constitution was ratified. Thus, Bruen seeks to lock in place the sort of gun laws that existed in the 18th century, and prevents state and federal lawmakers from innovating.

This decision is difficult to apply, in part because the Court has never adequately explained just how similar a modern-day law must be to an older law for the modern law to survive. At least a dozen federal judges from both political parties have published opinions criticizing Bruen as unworkable. In one Trump-appointed judge’s words, Bruen’s “inconsistent and amorphous standard” has “created mountains of work for district courts that must now deal with Bruen-related arguments in nearly every criminal case in which a firearm is found.”

Nevertheless, the Republican Party’s brief cites Bruen four times, and it calls upon the Supreme Court to expand its troubled experiment in Bruen to elections. Their argument appears to be that, because elections in 1845 were typically conducted in person, and all ballots were collected by the end of the day, it follows that all modern-day elections must be conducted this way. As the GOP’s lawyers put it, “that States went to the trouble of ensuring that ballots were received by election day ‘reveals a consensus’ that such effort was required.”

If taken seriously, this argument would invalidate a whole lot more than Mississippi’s law permitting absentee ballots that arrive within five days of the election to be counted. Again, mailed ballots are largely a 20th-century innovation, and voters typically had to cast their ballots in their home communities until the United States accommodated Union soldiers during the Civil War. Modern-day elections also frequently feature a web of laws governing provisional ballots, voter identification, online voter registration, and other practices that did not exist in 1845.

All of these laws are also potentially in danger if the Supreme Court extends Bruen to federal election law.

The plaintiffs’ Bruen argument also reads expansive meaning into federal statutes that give no hint that Congress had such ambitious goals. A statute which merely states that “the Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election” does not give any hint that Congress intended to freeze in place election procedures from 1845 and forbid innovations like absentee ballots (or, for that matter, absentee ballots that are counted even if they arrive late).

Simply put, the plaintiffs’ arguments in Watson are embarrassing. Some of them literally make no sense. And even the arguments that can be parsed 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 being made in good faith.

Hopefully, that means that the GOP does not have five votes to prevail in Watson.