A Republican-backed lawsuit, Watson v. Republican National Committee, is challenging the legality of counting mailed ballots that arrive after Election Day, based on a highly dubious interpretation of 19th-century election laws. The core argument hinges on the claim that Congress, when setting election dates nearly 200 years ago, inadvertently outlawed modern absentee voting practices – despite the fact that such practices barely existed at the time.
The Argument: A Stretch of Historical Context
The lawsuit rests on three federal statutes that establish the dates for presidential, House, and Senate elections. Plaintiffs argue that the wording of these laws, dating back to 1845, implicitly forbids counting any ballots not physically in possession of election officials by the designated Election Day. This is despite the fact that in 1845, nearly all voting was done in person; absentee ballots were not commonplace until the 20th century.
The Republican Party and the Libertarian Party of Mississippi assert that because Congress set the date for elections long ago, states now must discard ballots arriving after that date. Several states, including Mississippi, currently count mailed ballots received within a few days of the election. This practice, the GOP claims, violates federal law.
Why This Matters: Partisan Implications and Voter Suppression
If successful, this lawsuit would likely skew elections in favor of Republicans. Democrats have consistently voted by mail at higher rates than Republicans in recent cycles, and former President Trump has actively campaigned against expanded absentee voting. Disenfranchising late-arriving mailed ballots would disproportionately impact Democratic voters.
The legal challenge is so weak that some observers question whether it’s being pursued in good faith. The plaintiffs’ arguments, according to legal experts, are convoluted, illogical, and unsupported by historical evidence.
The Judges: A History of Partisan Decisions
The case reached a conservative-leaning federal appeals court, where a panel sided with the GOP. The judge who authored the opinion, Andrew Oldham, has a documented history of issuing decisions later overturned by the Supreme Court. While the Supreme Court often rejects Oldham’s decisions, it has already demonstrated a willingness to allow unprecedented actions by the executive branch, raising concerns that it may uphold this challenge.
A New Legal Standard: The Bruen Precedent
The plaintiffs are also pushing for the Supreme Court to apply the New York State Rifle & Pistol Ass’n v. Bruen standard to election law. This controversial ruling requires modern laws to be “historically analogous” to those existing at the time of the Constitution’s ratification. If applied to elections, it could invalidate many modern voting practices, including online registration, provisional ballots, and even absentee voting itself.
The Bottom Line: A Risible Argument with Serious Consequences
The arguments in Watson are widely considered weak and often incoherent. Yet, given the current composition of the Supreme Court and its willingness to embrace radical legal interpretations, there remains a risk that the Republican justices will side with the plaintiffs, potentially disenfranchising thousands of voters. The lawsuit highlights the ongoing efforts to restrict voting access and manipulate election outcomes through obscure legal challenges.
