“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
What’s at stake in this case?
The Republican National Committee is trying to block states from counting mailed-in ballots that arrive after Election Day, even if they were mailed on or before Election Day.
What happened in this case?
Especially since COVID, more and more Americans vote by mail. Mississippi counts ballots that are mailed on or before Election Day, as long as they are received within five business days after Election Day.
The Republican National Committee sued the state to prevent those people’s votes from ever being counted. According to the RNC, the federal law establishing a nationwide election day prohibits any state from counting ballots received after that day. A federal district judge rejected that argument.
But in 2024, a three-judge panel comprised of Trump judges James Ho, Andrew Oldham, and Kyle Duncan reversed the lower court and ruled for the RNC. A few months later, the entire court voted 10-5 not to review that decision en banc, a result made possible by the unified position of all five Trump judges voting on the case. (The sixth Trump judge, Cory Wilson, was recused.) The RNC appealed to the Supreme Court.
How did the Supreme Court rule?
An ideologically mixed majority of the Court overturned the Fifth Circuit in a 5-4 decision in Watson v. RNC. Justice Barrett wrote the majority opinion, joined by Chief Justice Roberts and Justices Sotomayor, Kagan, and Jackson.
Barrett wrote the opinion based on textualism, rather than factors like fundamental fairness or the importance of voting to our freedom. Nevertheless, her textual approach led to the same result.
Among other things, the majority opinion pointed out that the defining element of an “election” has always been the voters’ choice of candidate. And importantly, that choice is made when voting is complete, not when ballots are received.
What did Alito and the other dissenting justices say?
Justice Alito wrote the dissent, which was joined by Justices Thomas, Gorsuch, and (in most parts) Kavanaugh. He claimed that the receipt of ballots is an integral part of the voters’ choice. Therefore, he concluded, a federal Election Day means that all ballots must be received by then.
He also made an assertion that echoed Donald Trump’s efforts to undermine voter trust in voting by mail. He claimed that the majority opinion left the door open for “voter fraud” that would “further undermine Americans’ faith in the integrity of this country’s elections.”
This assertion itself is part of the MAGA effort to “undermine Americans’ faith in the integrity” of the elections that they lose. It should not be forgotten that in the days immediately after the 2020-2021 insurrection reached the violent phase of January 6, Alito had a flag that is associated with Trump’s “stop the steal” movement flying in front of his home.
Why would the dissenting view have been harmful?
The dissent was only one vote away from becoming a majority opinion. Had Alito, Thomas, Gorsuch, and Kavanaugh carried the day, the Republican National Committee would have succeeded in its effort to curtail our ability to vote and pick our own leaders.