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The Supreme Court will hear a case on Monday that could invalidate hundreds of thousands of votes in the upcoming midterm election. Watson v. Republican National Committee asks the justices to invalidate state laws that count ballots that were mailed on time, but received shortly after Election Day. The GOP argues that federal law requires states to toss all of these ballots—a position that would have nullified more than 750,000 votes in the 2024 election. On this week’s episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern discussed Watson, its implications for democracy, and its close connection to the SAVE Act—a voter suppression bill pending in the Senate that would impose sweeping new restrictions on mail ballots. An excerpt from their conversation, below, has been edited and condensed for clarity.

Dahlia Lithwick: This is an existential challenge to mail-in voting, and it has arrived just as we have the midterm elections coming up.

Mark Joseph Stern: This case really does drive me crazy. It marks an effort to overturn laws that count mail-in ballots if they arrive shortly after Election Day as long as they are postmarked or scanned by USPS on or before Election Day. About half the states have these laws, including some red states like Texas and Mississippi. They were enacted for the sensible reason that your right to vote shouldn’t be undercut by USPS delays that are outside your control.

Federal law does not say that states have to toss out mail-in ballots that come in after the election. It also doesn’t say that states have to count these ballots. Federal law is entirely silent on this; the only federal statutes that govern the receipt of mail ballots explicitly defer to states’ decisions about deadlines. Other than that, you can search the statutes high and low, and you will not find any congressional statement about whether late-arriving ballots should be counted. Republicans in Congress have introduced legislation trying to throw out late-arriving ballots, but they haven’t passed.

So the Republican National Committee filed this suit against Mississippi to try to enact such a law through the courts instead of by way of the democratic process. And of course, the 5th U.S. Circuit Court of Appeals predictably declared that late-arriving mail ballots are invalid in a characteristically sloppy opinion by Judge Andrew Oldham. This was part of his ongoing campaign for a Supreme Court seat. Oldham declared that when Congress set the dates for federal elections, it implicitly demanded that all ballots be received by that date. And to reach that conclusion, he defined an “election” to mean the date by which ballots are received rather than the date by which voters have cast their ballots. But that’s not how the Supreme Court has ever defined it!

Will you talk about the history here that Judge Oldham basically ignores?

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The widespread use of absentee voting occurred for the first time during the Civil War when many states allowed soldiers to vote from the field. The Constitutional Accountability Center looked into those laws that were passed in the 1860s, and guess what? A bunch of them explicitly counted absentee ballots that arrived 15 to 20 days after Election Day, including those that arrived by mail. So the only relevant history here about late-arriving ballots shows that states counted them at the advent of absentee voting. When, shortly thereafter, Congress enacted the law that governs when Election Day occurs, it said nothing about that. There’s just silence here. There is no indication that Congress wanted to throw out these ballots. There is every indication that Congress wanted to defer to the states. Yet now the Republican Party insists that all of these ballots have to be thrown out because that’s mandated by a law that doesn’t exist.

This really dovetails with the debate that’s raging right now in Congress about the SAVE Act. This is the president’s favored voting suppression bill that’s currently paralyzing the United States Senate. The various versions and proposed amendments to the SAVE Act would restrict mail voting—some would outlaw late-arriving ballots, or ban universal vote-by-mail. It does really feel like the GOP is just trying to sneak one version of the SAVE Act into the law, through this case, right? This is the Trojan horse—doing it by judicial fiat instead of by congressional action. And if this doesn’t happen by the democratic process, it still gets to happen by virtue of the judiciary.

Mark Joseph Stern: I think that’s the best way to understand this case. There are all these different iterations of the SAVE Act, but the key proposals would restrict mail voting in some way. One would force states to throw out all late-arriving ballots. It’s highly unlikely that any of this passes because it’s subject to the filibuster. Some Republicans want to nuke the filibuster to pass this law, as Trump demands, but I don’t think that’s going to happen. And if Congress doesn’t pass this law, the fallback option seems to be asking the Supreme Court to get it done. Which is like exactly what conservative judges are always warning against—seeking a shortcut through the judiciary when you can’t win through democracy.

It’s hilarious that this is being messaged as: We have to make sure they don’t vote. And we know who “they” are. 

Republicans certainly think that attacks on mail voting will help them, because right now, Democrats are more likely to vote by mail than Republicans in many states. Trump has dissuaded his supporters from voting by mail. And there is some indication that late-arriving ballots are more likely to be Democratic. So this case is a targeted effort to throw out disproportionately Democratic ballots.

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I do think it’s unlikely that the Supreme Court will take up this offer. Oldham’s decision for the 5th Circuit is incoherent, and he’s one of the most reversed appeals court judges today—the justices smack him down multiple times every term. I suspect a majority of the justices will be sensible enough to overturn him here as well. But he won’t care, because his opinion in this case was not about getting the law right. It was about campaigning for the Supreme Court. And there’s no better way to audition for the Supreme Court than to promise Donald Trump that you will interfere with elections to help the Republican Party win. We’ve come a long way since 2020, when Trump-appointed judges rejected the president’s effort to interfere with the election. Now 5th Circuit judges are trying to interfere with free and fair elections by changing the rules in a way that they have no authority to do, basically at the behest of Donald Trump. They are dancing monkeys, trying to dance the most so that they can secure a lifetime appointment to the most powerful court in the land and do his bidding for decades to come.

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