Fox News-Pilled SCOTUS Invents Wild Hypotheticals to Justify Curtailing Right to Vote by Mail
The Supreme Court’s right wing has gleefully produced wild hypotheticals to justify ending 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 law, and many others, allows mailed ballots to be counted if they were sent on Election Day but arrived afterward.
Mail-in voting has become a contentious political issue in recent years, fueled primarily by President Donald Trump falsely claiming it helped his shadowy enemies steal the election from him in 2020. Faced with the inconvenient reality that mail-in voting is not actually rife with fraud, many conservative judges have had to settle for increasingly hallucinatory simulations. On Monday, an inordinate amount of time was devoted to the possibility of voters “withdrawing” their vote, a complicated and rare procedure. Justices Neil Gorsuch and Clarence Thomas obsessed over the details of whether a neighbor or relative casts a voter’s ballot for them.
Many on the right looked Trumpian in their feigned concern about voter fraud.
Justice Brett Kavanaugh expressed concern that late-arriving ballots could spark cries of fraud, creating a “perception” that legal elections could appear rigged. As has become usual for the Court’s conservatives, in the absence of any real evidence of voter fraud, they have fallen back on the impossible-to-justify risk that people could think Something fishy is going on.
Those rabbit holes, which tripped up Mississippi Solicitor General Scott Stewart, distracted from Monday’s attempt by the Republican National Committee and the Trump administration to make mail voting more difficult to do because Democratic voters have used it more in recent history.
The party has been wildly inconsistent on mail-in voting, which Trump hates, except in sporadic moments when he doesn’t do it because party members tell him he also risks losing Republican votes. Republicans made an effort in 2024 to deprogram a base that repeatedly said mail-in voting was unsafe, but have since swung in the other direction as Trump has limited his anger to grace periods for receiving mail-in ballots. Some red states have already voluntarily repealed their pardon voting laws.
The RNC and its allied judges have cherry-picked historical data to try to prove that this long-standing, once-bipartisan voting practice is foreign to traditional American values.
“I am a little upset — not a little, a lot — by many of the statements in your brief citing historical sources out of context,” Justice Sonia Sotomayor told U.S. Solicitor General John Sauer.
And some didn’t even bother to delve into historical documents to support their legal arguments, because their opinions were so predetermined.
“We have a lot of expressions that involve two words, the second of which is ‘day,'” began Justice Samual Alito, trained at Princeton and Yale. “Labor Day, Memorial Day, George Washington’s birthday, Independence Day, anniversary and Election Day,” he continued, “birthday” apparently so convincing as to warrant a double-dipping.
“These are all special days – so if we start with that, if I have nothing to look at other than the phrase ‘Election Day,’ I think that’s the day where everything is going to happen,” he concluded.
Although the Roberts Court’s attack on voting rights has long been a dog-bite story, the action it is at least seriously considering is extreme: destroying a routine and widely practiced state policy on the grounds that Congress actually wanted federal law to prohibit it, but it simply hasn’t been brought up casually until now.
And the Court plans to do so a few months before the midterm elections, which constitutes a seemingly clear violation of the law Purcell principle: the idea that courts should not change how elections work too close to the election, so as not to confuse voters. But the Court has become accustomed to applying the rule sparingly, only when people likely to vote Republican are at risk.
