The right wing of the Supreme Court happily churned out far-fetched hypotheticals as rationale to end a voting practice so common that 30 states use it — including ruby red Mississippi, which was defending its version during Monday’s oral arguments.
Mississippi’s law, and the many like it, allows mailed ballots to be counted if they were sent by Election Day but arrived afterwards.
Voting by mail has become a contentious, political issue in the last several years, primarily fueled by President Donald Trump claiming falsely that it helped his shadowy enemies steal the election from him in 2020. Faced with the inconvenient reality that voting by mail is not actually rife with fraud, many of the conservative justices had to content themselves with increasingly hallucinatory what-ifs. An inordinate amount of time on Monday centered on the possibility of voters “retracting” their votes, a complicated and rare procedure. Justices Neil Gorsuch and Clarence Thomas obsessed over the granularities of having a neighbor or relative drop off a voter’s ballot in their stead.
Many on the right sounded Trumpian in their feigned concern about voting fraud.
Justice Brett Kavanaugh fretted over the chance that late arriving ballots would prompt cries of fraud, creating a “perception” that lawful elections might appear rigged. As has become rote for the Court’s conservatives, in the absence of any actual evidence of voter fraud, they fell back on the impossible-to-substantiate risk that people might think something fishy is going on.
These rabbit holes, which tripped up Mississippi Solicitor General Scott Stewart, distracted from the meat of Monday’s attempt by the Republican National Committee and the Trump administration to make voting by mail harder to do because Democratic voters have used it more in recent history.
The party has been wildly inconsistent about absentee voting, which Trump hates except in the sporadic times he doesn’t because party operatives tell him he’s risking losing Republican votes too. Republicans made an effort in 2024 to deprogram a base repeatedly told that voting by mail is unsafe, but has since swung in the other direction as Trump narrowed his ire to grace periods for receiving mailed ballots. Some red states have already voluntarily rescinded their grace ballot laws.
The RNC and its allied justices cherry-picked historical data to try to prove that this long-standing, once bipartisan voting practice is alien to traditional American values.
“I am a little upset — not a little, a lot upset — by many of the statements in your brief quoting historical sources out of context,” Justice Sonia Sotomayor said to U.S. Solicitor General John Sauer.
And some didn’t even bother delving into historical documents for their legal arguments, so predetermined were their opinions.
“We have lots of phrases that involve two words, the second of which is ‘day,’” began the Princeton and Yale-educated Justice Samual Alito. “Labor Day, Memorial Day, George Washington’s birthday, Independence Day, birthday and Election Day,” he continued, “birthday” apparently so compelling as to warrant double-dipping.
“They’re all particular days — so if we start with that, if I have nothing more to look at than the phrase ‘Election Day,’ I think this is the day in which everything is going to take place,” he concluded.
While the Roberts Court attacking voting rights has long been a dog bites man story, the action it’s at least seriously contemplating is extreme: ripping up a routine, widely practiced state policy on the grounds that Congress actually meant federal law to forbid it, but it just randomly hasn’t come up until now.
And the Court is considering doing this months before the midterm elections, a seemingly clear violation of the Purcell principle: the idea that courts shouldn’t change how elections work too close to them, so as to not confuse voters. But the Court has become comfortable applying the rule sparingly, only when people likely to vote Republican are at risk.
