The Supreme Court Looks Likely to Cave On Mail-in Ballots

The GOP shouldn’t win this case, but the fact that Trump has been throwing a tantrum about it for years means they likely will.

By Elie Mystal, The Nation

The Supreme Court heard oral arguments on Monday in a case that exists only because Donald Trump lost the 2020 election, threw a temper tantrum, attempted a coup d’etat, failed at that, and has spent the last six years claiming he won the election he clearly lost. The case is called Watson v. Republican National Committee, and it involves a Mississippi law that allows mail-in ballots postmarked by Election Day to be counted as long as they are received by the state board of elections within five days of the election.

Mississippi adopted this law during the Covid-19 pandemic, but over 30 states have similar laws. Legally speaking, this is a standard application of “states’ rights.” Congress set the date for federal elections in the Presidential Election Day Act of 1845 (“the Tuesday next after the 1st Monday in November, in every even numbered year”) but it’s left to the states to determine how to administer those elections. Obviously, mail-in ballots weren’t really a thing in 1845—indeed paper ballots weren’t really a thing (which I explain in my bestselling book Bad Law: Ten Popular Laws Ruining America, which you can find here, if you haven’t honored me by picking it up yet). But as voting has evolved, most states reasonably concluded that people who mail ballots by the federally mandated election day should have those ballots counted when they arrive.

Counting mail-in ballots was an uncontroversial practice until Donald Trump lost an election. Trump declared, without a scintilla of evidence, that mail-in ballots were “rigged,” and the Republicans have lined up like lemmings to follow Trump off the anti-democratic cliff. Mail-in ballots received after Election Day do not change the outcomes of elections. But they can change the initial reports called out by newscasters standing in front of giant touch screens on election night.

Those early reports are called the “red mirage.” For reasons that we still don’t fully understand, Republicans tend to perform better with voters who cast their ballots on Election Day, while Democrats tend to perform better with voters who cast their ballots early or by mail. Because states tend to count the ballots cast on Election Day before they count ballots cast through other means, the television people often report Republican leads that slowly get whittled away as more votes are counted. There’s nothing “fishy” or “rigged” about that. But if you have a problem with it, you should really send your complaints to Steve Kornacki and John King, not the state boards of elections that are just counting votes.