The Supreme Court’s new voting case will test its supposed nonpartisanship

Justice, Democracy, and Law is a recurring series by Edward B. Foley that focuses on election law and the relationship of law and democracy.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

Electoral competition in the United States will become increasingly intense next year as the congressional midterms approach and the nation moves towards the 2028 presidential election. The reason for this heightened intensity should be obvious: in addition to the generally accelerating partisan polarization that afflicts U.S. politics, there is the acute strain caused by President Donald Trump’s record of accusing elections of being rigged or stolen when he doesn’t like the outcome or anticipates a potential defeat.

No midterm in memory has provoked anything like the anxiety in anticipation of this one. The media is rife with stories about the possible moves Trump might make to undermine the outcome of the midterms to prevent Democrats from regaining a majority in the House of Representatives, which would put them in a position to investigate or even impeach the president yet again. One prominent article in “The Atlantic,” headlined “Donald Trump’s Plan to Subvert the Midterms is Already Underway,” is representative. (Elsewhere I’ve pointed out a detail in this article that is incorrect.)

There is reason to be worried. After all, Trump brazenly has endeavored to persuade states, starting with Texas, to engage in an extra round of aggressive gerrymandering in order to tilt the electoral playing field in his (and his party’s) favor. In this context, we can expect that the Supreme Court will be tested by litigation aimed at affecting the outcome of these high-stakes elections. Indeed, the court already has heard Louisiana v. Callais, argued last month, a monumental case involving the Voting Rights Act of 1965 (which I have previously written about). Callais will not only have widespread implications far beyond just its effect on next year’s congressional races, but depending on the timing of the decision, could also significantly affect which party controls the House in 2027.  

And now the court has granted certiorari in Watson v. Republican National Committee, a case in which the Republican Party is endeavoring to change longstanding practices in many states concerning the receipt and counting of absentee ballots. Currently, 16 states permit absentee ballots to be counted if election officials receive them within a certain period of time after an election so long as they are postmarked and thus cast on or before Election Day. Mississippi, where this case originated, allows five business days for absentee ballots postmarked by Election Day to arrive at the local election offices where they will be counted. Although federal laws regulating congressional elections have been amended multiple times in ways that reflect the existence of this well-established state practice, the Republican Party’s lawsuit claims that Congress has enacted a requirement that all absentee ballots must be received by election officials on Election Day and not just postmarked on or before that date. 

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Before delving into the details of the issue in Watson v. RNC, it is worth observing that in general there are two jurisprudential postures that the Supreme Court can take, and has taken, in election cases. One can be described as a pro-democracy posture, in which the court interprets the Constitution and federal statutes insofar as possible to facilitate the operation of a well-functioning democracy. This pro-democracy interpretative stance has a distinguished pedigree, stemming from the civil rights era of the 1960s and articulated most systematically and famously in John Hart Ely’s influential book “Democracy and Distrust: A Theory of Judicial Review,” which I described in my first “Justice, Democracy, and Law” essay for SCOTUSblog. Ely called this jurisprudential approach “representation reinforcing” – a term that nicely captures the fact that it is goal-oriented, aiming to make democracy more democratic, and is not simply striving to interpret the relevant texts according to the most faithful account of their original meaning. Representation-reinforcing constitutional interpretation undertaken by the Warren Court in the 1960s is responsible for the most foundational precedents of modern election law, which sought equal voting rights for all adult citizens. 

The other jurisprudential posture can be described as “democracy-neutral” textualism. According to this approach, it is not the judiciary’s job to facilitate democracy. Instead, it is to implement the law as objectively as possible according to whatever the enacted words of the law prescribe and in accordance with whatever values, democratic or otherwise, motivated the enactment of those words. This democracy-neutral textualism has been ascendant during the era of the Roberts court, eclipsing the earlier representation-reinforcing approach. It explains, for example, the outcome in Rucho v. Common Cause, the case in which the court (with Chief Justice John Roberts writing the majority opinion) refused to condemn as unconstitutional an egregious partisan gerrymander. The court’s decision in Rucho rested on the basic proposition that no textual provision of the Constitution purported to prohibit partisan gerrymanders, and in the absence of such text the court was unwilling to identify and enforce a standard for determining when partisan gerrymanders are impermissible.

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As much as I am a fan of the representation-reinforcing approach, there are sound justifications for being cautious in its use. Democracy is not a monolithic entity. Rather, there are different versions of democracy and thus different plausible conceptions of how a democracy should operate. It is therefore not always clear what the pro-democracy interpretation of the existing enacted law would be in a particular case. 

In fact, as a matter of election administration policy, it is not obvious what the pro-democracy position is in Watson v. RNC. Superficially, one might think that letting absentee ballots arrive after Election Day as long as they are postmarked by Election Day is pro-democracy because it facilitates voter participation. But experts in election administration know that absentee voting entails significant risks of inadvertent voter disenfranchisement. Casting an absentee ballot is much more vulnerable to voter error than in-person voting at a polling place: absentee ballot envelopes must be filled out correctly and, regardless of the date they are due to arrive at local election offices, there is the possibility of being lost in the mail.

Furthermore, delays in counting absentee ballots inevitably breeds considerable distrust in the outcome of close elections. Although all reported results on Election Night are unofficial and must await certification after the canvassing of election returns – a process that can take several weeks in some states – voters are conditioned by TV and other forms of media to expect to learn election outcomes on Election Night. If the counting of absentee ballots many days after the polls close changes the outcome of a race, voters who supported the eventual losing candidate will be suspicious even though nothing improper has occurred. One doesn’t need to be an irresponsible conspiracy theorist to recognize that the electorate will be more confident in the integrity of election outcomes if absentee ballots can be counted at the same time as in-person votes and, accordingly, election results won’t flip days after the election is over because of late-arriving and late-counted absentee votes. 

But it would be wrong for the Supreme Court to resolve Watson v. RNC based on these concerns, which are contentious under current conditions of partisan polarization, with the two opposing parties having vehemently different views on absentee voting (the Democrats typically for, the Republicans typically against). Instead, the Roberts court can and should decide this case based on its own democracy-neutral form of textualism. 

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The issue in Watson is whether the specification in federal law of the “day” for holding a congressional or presidential “election” on “the Tuesday next after the first Monday in November” requires only that absentee ballots be cast by that “day” (meaning deposited in the mails and thus postmarked by that day), rather than requiring that these absentee ballots arrive at local election offices by that “day.”            

It is well understood that not all voting occurs on Election Day itself but instead must end on that date. In many states, there has developed a practice of in-person “early” voting, which allows voters to cast ballots at designated polling locations in advance of Election Day. One main reason for this salutary development is to avoid the long lines that can occur in polling precincts during an election, which not only burden the voting process but discourage people from voting in the first place. Absentee ballots also can be, and usually are, cast before Election Day. Casting an absentee ballot means putting it in a mailbox rather than the proverbial “ballot box” (as the 5th Circuit and RNC describe the traditional method of in-person voting). But, either way, a voter’s ballot is cast once it is out of the voter’s hands and has been deposited in a receptacle from which it will be transmitted for counting. 

And this is where textualism comes in: Nothing about the meaning of the word “day or “election” in the relevant federal statutes, or in the concept of Election Day as codified in federal law, requires that an absentee ballot cast by a voter on or before Election Day be placed in the hands of a local election official by Election Day. And nothing in federal law requires a proverbial “ballot box” in which a voter has placed a ballot cast in person at a polling precinct to be opened by an election official on Election Day, or even transmitted from the precinct to the local election jurisdiction’s central counting office on that date. Once the ballot is cast by Election Day, the federal law requiring that voting be complete on Election Day is satisfied.

Indeed, Congress has legislated rules for absentee ballots premised on this understanding. In the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), enacted in 1986, Congress required that absentee ballots be available for overseas and military voters that would enable them to return their ballots by whatever deadline the applicable state set. When adopting this requirement, Congress knew that some states allowed absentee ballots to be returned after Election Day as long as they were cast and postmarked by that date. The same is true in the Military and Overseas Voter Empowerment Act (MOVE), a 2009 law in which Congress added supplementary rules to facilitate absentee voting by military and overseas voters. 

The most recent and significant piece of legislation that Congress enacted based on the recognition that many states permit absentee ballots to arrive after Election Day (if properly postmarked before then) is the Electoral Count Reform Act of 2022. This statute was a bipartisan compromise negotiated in the aftermath of the contestation that occurred over the outcome of the 2020 presidential election. Because of the COVID-19 pandemic, more states than ever before permitted absentee ballots to arrive after Election Day as long as they were cast by then. 

In ECRA, Congress added a new definition of “election day.” This new definition recognized that in-person voting at polling places could continue to occur past midnight on Election Day if, but only if, certain strict conditions were satisfied. These strict conditions were limited to “force majeure” events that prevented completion of voting on Election Day. States, to take advantage of the possibility of extended voting, were required to enact a statute in advance setting forth the exact circumstances and procedures for this kind of exceptional extension. 

When Congress adopted this carefully crafted compromise provision on the (extremely) limited extension of Election Day voting, it was thoroughly aware of the various state practices concerning the deadlines for arrival of absentee ballots that had been cast on or before that date. It is unfathomable that Congress, as part of this meticulous bipartisan negotiation, intended silently to disturb these existing state practices concerning absentee voting. To the contrary, in ECRA Congress was leaving in place the longstanding understanding that the meaning of “election day” in federal law permitted states to count absentee ballots cast on or before Election Day (because they were postmarked by then) even if those absentee ballots were not yet in the possession of local election officials when the polls closed on that date. 

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Given all this, the correct application of democracy-neutral textualism in Watson v. RNC is to uphold Mississippi’s law permitting absentee ballots to arrive up to five business days after Election Day. Were the court to decide otherwise, it would place the interest of Republican litigants over its own supposed commitment to textualism, and paint the rule of law as a charade when it comes to the enforcement of electoral procedures. 

Of course, strict nonpartisan adherence to democracy-neutral textualism won’t guarantee that next year’s midterms, or the presidential election after that, will be conducted according to the best possible realization of democratic ideals. Nor will it guarantee that such elections won’t be challenged by rank partisans. But it would at least guarantee these elections are conducted properly, in accordance with the existing laws that govern their procedures.