Yesterday, SCOTUS heard oral arguments in the case Watson v. Republican National Committee. This is the case regarding the viability of mail-in ballots and whether or not they should be counted if received after election day (even if they are postmarked before election day).
While IANAL, some of the arguments made by the RNC to SCOTUS were, well, quite unbelievable. I’ll let Marc Elias from the Elias Law firm (a true American hero and one of the main bulwarks against Republican authoritarianism) fill you in (may be paywalled):
After rereading the transcript, I turned to the media’s coverage of the day. Some thought we would win, others predicted a loss. All, however, treated the RNC’s position as normal and legally reasonable.
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For example, in their complaint in Watson, the RNC cited data showing that Democratic voters disproportionately utilize vote by mail and mail their ballots late. Then they went a step further. In a federal court filing, the RNC had the audacity to write that counting these ballots "specifically and disproportionately harms Republican candidates and voters.".
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Our country has spent decades treating politics as a game between two teams, each with legitimate grievances. That framework may have made sense when both parties operated within the democratic rules of the road. But that hasn't been true for more than a decade — and it is getting worse.
Trump has now made the SAVE America Act his top legislative priority, threatening to refuse to sign any legislation until it passes. His explanation for why Republicans need it was, as usual, unambiguous. "We'll never lose a race. For 50 years, we won't lose a race."
Rather than examining why the GOP is investing such enormous political capital in a bill that strips voting rights from millions of Americans, the media focuses on whether it might backfire politically.
I am writing this because I want to warn you and because I want there to be a record.
The Republican Party is telling us, with brimming confidence and zero shame, that it intends to make it harder for its opponents to vote and easier to control the outcome of elections. They are prepared to use every tool available to them — legal or not — to stay in power.
There are no two sides to a confession. There is only the confession — and the choice of whether to take it seriously.
I was stunned when reading this. Have we really gotten to the point where Republicans feel free in front of a friendly partisan-hack SCOTUS to make blatant political (and IMHO, non-legal) arguments that SCOTUS should rule in their favor because the RNC doesn’t want to count the votes of people who vote against them? Is the political fact that Democrats tend to utilize mail-in voting more often than Republicans now being treated as a legal matter?
Those are rhetorical questions. The simple answer from me and, better yet, from a legal giant like Marc Elies is, amazingly… YES.
The RNC is also arguing that extending ballot receipt past Election Day contravenes Congress’s mandate of a uniform national election day and erodes confidence in results.
Again, IANAL, but election day is still election day even if mail-in ballots are used. And the main thing that erodes confidence is Republicans’ specious argument that somehow a vote cast by mail is “less valid” than a vote cast in person. Again, is “eroding confidence” really a “legal” argument? Again, rhetorical question.
I though the American ideal was to incentivize everyone to take advantage of one of their most important constitutional rights - the right to vote. The U.S. Postal Service is theoretically non-partisan. However, if the U.S. Postal Service is run by a naked partisan (as was the case with the previous Postmaster General, Louis DeJoy (a major Republican donor and fundraiser), a SCOTUS decision that mail-in ballots postmarked before election day are not valid if received after election day would leave our elections at the mercy of whichever political party is more incentivized to delay the mail.
Likewise, if “eroded confidence” in mail-in ballots becomes a material legal point, doesn’t that just incentivize whichever political party believes mail-in ballots are more harmful to their electoral chances to purposefully pursue a strategy of … eroding public confidence?
This is madness masquerading as legal matters.
I also want to address Marc’s point about the media. The legacy media has historically looked at voting cases/issues/complaints through their typical “horse race” lens of which party benefits vs. which party gets hurt, when the real issue is which party is actively working to suppress legal voters from voting (hint: Rs) vs. which party wants every legal voter to be able to vote (hint: Ds).
The media also acts as if the candidate who is temporarily ahead on election day before all mail-in ballots are counted is “winning”, while the reality is simply that some ballots are counted later than others. The fact is that no candidate is actually “winning” or “losing” until all the ballots are counted (don’t come at me - I get that there are some races where it is easy to know who will win even before all the ballots are counted). Example: in Wisconsin, ballots from the state’s largest city - Milwaukee - tend to get counted later in the evening simply due to higher volume than more rural areas of the state. If a statewide Republican has more votes before all of Milwaukee’s votes are tabulated, that doesn’t mean that Republican is “winning”; it just means not all the votes have been counted. Republicans, however, would have us believe this means there is some type of nefarious vote-fixing scheme taking place. Talk about falsely eroding confidence…
One final point. Historically, many elections in the U.S. were not often decided on election day because it took many days to count votes. In fact, until 1845, elections were generally held not on a single day, but over a period of many days. Congress only established a national Election Day in 1845 to streamline results and reduce the influence of early results on later voting decisions. Of course, this is not an issue if mail-in ballots are counted on election day and after.
Oh, BTW, there was special election yesterday for the state legislature in the Florida district where Mar-A-Lago is located (the Dem candidate won and flipped the seat). Trump voted in that election. Yep - he voted by mail.
