The article originally appeared in Election Law Blog. Checks & Balances is a newsletter of the Society for the Rule of Law Institute.
By Richard Bernstein
Lawyers and Justices sometimes mistakenly describe the facts. Whichever way any decision goes, the law should be predicated on the correct underlying premises. So this post corrects two errors at today’s oral argument in Watson v. RNC, where the legal issue is whether federal law forbids a state from counting ballots mailed by election day and received by a subsequent state statutory deadline. This post leaves aside today’s miscitation of legal sources, which is common at many oral arguments, as the Justices and clerks can read those sources for themselves. Here’s hoping some Justice or clerk learns of these two other errors.
The first came from Justice Gorsuch, who suggested that there is no way to prevent recalling a ballot after it was mailed . This is untrue. The USPS already marks what it calls “Return Ballot Mail” with special identifying marks, bar codes, and logos. USPS, Domestic Mail Manual (“DMM”) 202.8.1, 507.05.1.2-1.3, 703.8.2.2, 703.8.4, available online. The USPS has full authority to clarify immediately in the DMM that Return Bail Mail is ineligible for recall after election day. Or the SCOTUS could say in its Watson decision that the USPS must so clarify the DMM so that its mail recall provisions are not contrary to federal law—namely, the federal election day statutes.
The second error came from the estimable Paul Clement, counsel arguing for Respondents. Justice Jackson had cited the point in the amicus brief of the Society for the Rule of Law Institute, at 10-14, that election day by the electors for the President has been days even weeks before the first official receives electoral votes since the birth of the Republic. This shows that voting can be complete on an election day before the first official’s receipt. Mr. Clement responded that electoral voters were and are received and cast simultaneously.
This is misleading. The only ones to whom Mr. Clement might be referring as receiving the electoral votes simultaneously with casting are the electors themselves. But the Supreme Court has twice held that the electors are not election officials, or officials of any kind. “[T]hey are not federal officers or agents any more than the state elector [voter] who votes for congressmen.” Ray v. Blair, 343 U.S. 214, 224 (1952); see In re Green, 134 U.S. 377, 379 (1890) (“they are no more officers or agents of the United States than are . . . the people of the states when acting as electors [voters] of representatives in Congress”).
Surely, Mr. Clement is not suggesting that an election day requirement is satisfied when a voter has custody of his own marked ballot before sending it addressed to an election official. That would defeat his whole argument. The fact is that since the dawn of the Republic an electoral vote is complete when it is sent well before it is first received in Washington by a federal official—that is, by the President of the Senate (usually, the Vice President) or Senate staff. Mr. Clement is asking the SCOTUS to rule that popular voting using the exact same method as electoral voting is illegal.
The facts are the facts. Let the best legal argument win.
Richard Bernstein is a Charter Member of the Society for the Rule of Law. He is a former partner at Willkie Farr & Gallagher and a former partner at Sidley Austin. He clerked for Justice Antonin Scalia from 1987–88 and Judge Amalya Kearse from 1986–87.