Tangle - Mail-in voting before SCOTUS.

Starting point is 00:00:00 From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon and good evening, and welcome to the Tangle podcast, a place we get views from across the political spectrum, some independent thinking, and a little bit of my take. I'm your host, Isaac Saul, and on today's episode, we're going to be talking about the mail-in ballots arguments that were held before the Supreme Court last week while we were on break. We're going to discuss exactly what those arguments were about, what the implications might be, share some views from the left and the right, and then today I'll be giving my take. We also have a staff concurrence today from Audrey Moorhead, who coincidentally is hosting the podcast with me today as well. Before we jump in, I do want to give you a quick heads up that we have something really interesting happening. A scientific survey of Tangle readers. That's right. The University of Minnesota wants to study,

Starting point is 00:01:09 you, our Tangle audience, readers and listeners, and understand how you engage with other people about politics. It would be incredibly helpful for us if you participated. The survey is anonymous. It takes five minutes, and it gives you the option to enter a lottery for a $200 Amazon gift card. There is a link to the survey in today's episode description, and I encourage you guys to check it out. With that, I'm going to send it over to Audrey for today's main topic, and I'll be back for my take. Thanks, Isaac. Let's get right into it with today's quick hits. Number one, President Donald Trump will deliver a speech with an important update on Iran tonight at 9 p.m. Eastern. Number two, President Trump signed an executive order directing the Department of Homeland Security

Starting point is 00:02:01 to make a list of U.S. citizens in each state who are eligible to vote and barring the Postal Service from sending mail-in ballots to anyone not on the list. The order also instructs the Attorney General to prioritize the prosecution of election officials who distribute ballots to ineligible voters. The executive order is expected to be challenged in court. Number three, the Supreme Court will hear arguments on Wednesday in a challenge to President Trump's executive order seeking to end birthright citizenship. The president plans to attend the arguments. Number four, U.S. and Iraqi authorities said that American journalist Sherry Kittleson, a freelance journalist, was kidnapped in Iraq. A suspect with ties to an Iranian-aligned militia group was arrested in connection with the kidnapping,

Starting point is 00:02:45 but Kittleson's whereabouts remain unknown. Number five. A federal judge temporarily blocked President Trump's plans for a $400 million construction of a White House ballroom, ruling that the project requires congressional authorization. Separately, a different federal judge blocked Trump's executive order ending federal funding for national public radio and the public broadcasting service. Finding that the order ran afoul of the First Amendment's protections against viewpoint discrimination. Last Monday, March 23rd, the Supreme Court heard oral arguments in Watson v. Republican

Starting point is 00:03:23 National Committee, a challenge to a Mississippi law that allows mail-in ballots postmarked by Election Day to be counted after Election Day. Mississippi's absentee voting law is getting national attention today. The U.S. Supreme Court is hearing arguments over the Mississippi law that allows absentee ballots postmarked by Election Day to be counted up to five days later. Lawmakers passed the law when 2020 during the COVID pandemic to handle a surge in absentee voting. In 2024, state and national Republicans sued arguing the grace period conflicts with federal law that sets a single election day. A federal judge upheld the law, but that ruling was later overturned by the Fifth Circuit Court of Appeals.

Starting point is 00:04:15 Mississippi is one of 18 states along with Washington, D.C., that accepts some ballots after election day. Last Monday, March 23rd, the Supreme Court heard oral arguments in Watson v. Republican National Committee, a challenge to a Mississippi law that allows mail-in ballots postmarked by Election Day to be counted after Election Day. Several conservative justices appeared sympathetic to the challengers, who argued that the state law violates federal statutes defining the date of elections. If the court rules in favor of the challengers, more than a dozen states with similar laws could be affected. Let's get some context. the COVID-19 pandemic, Mississippi changed its election laws to allow mail and ballots for the

Starting point is 00:04:56 2020 election to be counted up to five days after Election Day, if postmarked by that date. A group led by the Republican National Committee, or RNC, challenged the post-election ballot deadline in federal court in 2024. In October of that year, a district judge upheld the law, finding that the five-day period did not violate the intention of existing Election Day statutes. A three-judge panel for the 5th U.S. Circuit Court of Appeals reversed that ruling on appeal, finding that those statutes require all ballots to be received by Election Day. Mississippi appealed that decision to the Supreme Court, which agreed to consider the case in November. Paul D. Clement, representing the RNC and other plaintiffs, argued that federal statutes require receipt of ballots by Election Day itself.

Starting point is 00:05:42 Clement argued, quote, All agree that elections for federal office have to end on the day of the election specified by Congress. And all agree that you can't have an election unless you receive ballots, and there must be some deadline for ballot receipt. Nonetheless, Mississippi insists that ballots can trickle in days or even weeks after Election Day. Mississippi Solicitor General Scott G. Stewart argued that voters are only required to make a final choice by Election Day. Stewart said, quote, states have broad power over elections. Throughout our history, they've used that power to change how they hold elections. The dispute is what

Starting point is 00:06:17 Congress blocked just one change, allowing ballots cast by election day to be received after that day. Justice's Samuel Alito, Amy Coney Barrett, and Brett Kavanaugh, along with Chief Justice John Roberts, all appeared at various times sympathetic to the arguments presented by the challengers. Justices Cavanaugh and Alito appeared particularly concerned about the appearance of fraud that would follow delayed elections, while Justice's Barrett and Thomas pressed Stewart on what constituted a final decision. Justice's Sonia Sotomayor, Katanji Brown Jackson, and Elena Kagan, all appeared to side with the defense, citing a lack of textual evidence that would abrogate responsibility from the states. As is typical, the Supreme Court has not indicated when it expects

Starting point is 00:06:59 to issue a final decision in the case. If the court rules on the case this summer, as expected, states may have only weeks to implement new laws before voting begins in the midterm elections in November. Now we'll get into what the right and left are saying about the case. Then I'll hand it over to executive editor Isaac Saul for his take, and I'll be back with a concurrence. We'll be right back after this quick break. Here's what the right is saying. Most on the right think the court should rule that mail and ballots must arrive by Election Day. Some say the case could have an outsized influence on the midterms.

Starting point is 00:07:50 Others push back on arguments that stricter standards will hurt voters. In the New York Post, Betsy McCauley wrote, What is Election Day? Supreme Court's answer could swing the midterms. The U.S. Constitution reserves to state legislatures the authority to prescribe the times, places, and manner of holding federal elections. True. But the Constitution empowers Congress to set the date.

Starting point is 00:08:14 In recent years, the meaning of Election Day has been eroded, its finality and certainty upended by state laws allowing absentee ballots to be counted days later. At stake is a national treasure of civic virtue, long understood as the day on which the whole electorate's votes get counted, and everyone knows the results. Democrats argue that striking down the Mississippi grace period would throw the coming midterms into chaos. But four states, Ohio, Kansas, North Dakota, and Utah eliminated their grace periods last year when the Mississippi lawsuit was filed. These states expect the grace period to be struck down, and they're on the mark. A clear majority of states require ballots to

Starting point is 00:08:52 arrive by election day to be counted, and no one is protesting that. a massive disenfranchisement problem. Getting to the mailbox with plenty of time to spare is a small price to pay for the privilege of living in a representative democracy. In reason, Damon Root explored what's at stake in Watson v. Republican National Committee. Both sides agree that Congress may, if it wanted to,

Starting point is 00:09:14 directly prohibit a state from counting mail-in ballots that arrived after a federal election. The disagreement is about whether Congress already has prohibited the states from doing so. Because federal election law does not explicitly say anything like that, however, the legal wrangling is largely over questions of congressional intent and statutory interpretation, as well as the related question of just how much deference the states ought to receive in this kind of dispute. Mississippi is one of more than a dozen states that currently have such mail-in balloting laws on the books,

Starting point is 00:09:45 so the outcome of this dispute could impact election day practices well beyond the borders of the Magnolia State. with both a midterm election coming up this fall and a sitting president who recently argued that, quote, Republicans ought to nationalize the voting, end quote, that leaves us with the makings of a Supreme Court decision that is as important as it is controversial. Finally, on the Wall Street Journal's Potomac Watch podcast, Kim Strassel discussed speculation that the court will cause chaos in elections. All these headlines in the press right now suggest that if the Supreme Court goes this way and it kills these grace periods, there's going to be chaos around the country and chaos in elections. And I do think that it is incumbent on the Supreme Court. If they are going to get rid of these

Starting point is 00:10:28 grace period laws, then they either need to get this opinion out extremely quickly, like right away so that people have time to plan for it, or they possibly need to stay it. It's not impossible, though. I think that's very different from the arguments that were made, which I found very unpersuasive in this case, that this is unworkable and unfair. There was a lot of talk about overseas and military voters. But Justice Kavanaugh also talked about how the importance here is simply knowing what the deadline is and then making sure that people have enough time to actually hit that deadline. Many states actually already allow their overseas military members to vote online, making sure that their ballots are actually cast and heard. There's no reason that other

Starting point is 00:11:07 states can't do the same if they're that concerned about military voters and overseas voters being able to get their ballots. That's it for what the right is saying. Now what the left is saying. The left worries the court will side with the RNC on dubious grounds. Some say that the case only fuels Trump's misleading claims about fraud. Others criticize the court's justices for focusing on hypotheticals over substance. In the nation, Ellie Mistal wrote, The Supreme Court looks likely to cave on mail-in ballots. If you take the Republican arguments about Election Day to its logical conclusion,

Starting point is 00:11:52 their theory of the case also kills the ability of states to have an early voting period. If the 1845 Election Day Act sets the date certain by which votes must be received, there's every reason to say that it also sets the date certain for when votes must be cast. Obviously, in 1845 there was no early voting. Since then, states have been given the power to decide for themselves when election day starts. If the Republicans' theory holds, ballots cast before election day are just as invalid as ballots received after election day. The Republicans shouldn't win this case.

Starting point is 00:12:24 They shouldn't have won it in front of the Fifth Circuit. We shouldn't be here at all. The only reason their argument hasn't already been thrown out of court is that Donald Trump lost an election and can't handle that loss like an adult. But Donald Trump is whining on social media and might launch another coup is often enough of a reason for the Supreme Court to upend settled law.

Starting point is 00:12:45 They might do it again. My gut tells me it's a 6-3 win for the hysterical man throwing a six-year temper tantrum. In New York Magazine, Ed Kilgore said, Supreme Court risks fueling Trump's attack on mail ballots. The principal argument for federal court intervention regarding the state-determined election administration issue is the claim that it violates a federal statute, itself authorized by the Constitution, creating a uniform election day for federal elections. Counting ballots received after this uniform day,

Starting point is 00:13:14 it is suggested, eviscerates election day itself. It's rather a dumb argument if you think about it for a few minutes. Voters casting mail ballots prior to election day fill out a ballot, seal and sign it, and turn it over to the U.S. Postal Service. It is just as definitive an act as voting in person, before or on Election Day, and actually involves more of an effort. Voting rights advocates shouldn't overreact to a narrow but adverse decision if it comes. Post-election day mail ballot receipt allowances are mostly a vestige of the COVID-19 era, in which the Postal Service periodically struggled with handling a suddenly elevated number of mail ballots. Given proper notice, voters can likely comply with new

Starting point is 00:13:54 ballot receipt deadlines, much as they did before the pandemic. But while it's not inherently a blow to democracy, a restrictive decision in Watson v. R&C could give new impetus to Trump's more general attack on voting by mail. In Slate, Mark Joseph Stern suggested the elito wing of the Supreme Court sure sounded sold on Trump's voter fraud lies. The Supreme Court may be poised to commit the single biggest act of disenfranchisement in modern history in a direct assault on the constitutional authority of states to set election laws. That news in itself is a five-alarm fire for democracy. But what makes it even more disturbing

Starting point is 00:14:31 is the fact that so many justices proved eager to embrace a legal theory that is incoherent, dishonest, and rooted in paranoid hostility towards male voting. Because there is so little evidence of vote-by-male fraud, these justices warned of the threat of appearance of fraud as being just as dangerous. Justice Samuel Alito asked Mississippi Solicitor General Scott Stewart if he thought it was legitimate for us to take into account Congress's passage of election day

Starting point is 00:14:56 statutes for the purpose of combating fraud or the appearance of fraud. Stewart explained that even the Trump administration had failed to identify a single example of fraud from post-election day ballot receipt in this century. But Alito's argument was not grounded in reality, or for that matter, law. It is not the Supreme Court's job to decide whether Mississippi's law increases fraud or the appearance of fraud, though it doesn't. Its job is to decide whether Congress intended to foreclose grace periods for mail ballots when it set federal election day more than 150 years ago.

Starting point is 00:15:28 It obviously did not. That's it for what the right and left are saying. Now let's head to Isaac for his take. All right, that is it for the left and the right are saying, which brings us to my take. One question I love to ask my audience is, when was the last time you changed your mind? Try to imagine a moment in the last few months when your position on a position on a point. political issue changed. And if you can't think of one, meditate on why. Nobody has ever been right

Starting point is 00:16:06 about everything, and there is pretty much a zero percent chance you're the first person who is. Changing your mind is a sign of intellectual humility. I like to be open about when my mind changes because I think we should talk about our intellectual evolutions without shame. For me, today is one of those days. When headlines about oral arguments came out, the consensus seemed to be that the Supreme Court would strike down Mississippi's law and up-end mail-in voting in several states. I message my team on Slack saying that I thought the court would be right to do so, and I was ready to write about it. Yes, I would prefer if votes postmarked before or by Election Day count because I want more voices to be heard. But I also believe that this was incongruent with the law, that Election Day was intended to be Election Day,

Starting point is 00:16:57 and that our current condition of chronically delayed election results is both untenable for public trust and also not the intended norm for our democratic process. In other words, I believe these grace periods were an important element of voter access, but I believed ending them would be the correct legal decision. After reading through the oral arguments, though, my position changed. Not only did I come away thinking Mississippi had the law on its side, I also became less convinced about the practical importance of the...

Starting point is 00:17:27 this system for voter access. Let's start with the law. Article 1, Section 4 of the Constitution says the times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof, but the Congress may at any time by law make or alter such regulations. So, states make election rules unless Congress makes rules to alter those regulations, clear as mud, I suppose. Both sides. of this case agree that Congress could, if it wanted to, directly prohibit a state from counting mail-in ballots that arrived after a federal election. But that is not the question in this case. Instead, the question is simply whether Congress has already done that. The federal statute at the

Starting point is 00:18:15 center of the case is an 1845 law that established the Tuesday after the first Monday in November as election day. If ballots are counted later, the challengers argue, then the state is violating federal law. Paul Clement, arguing for the challengers, said that casting ballots was implicitly intertwined with Election Day, arguing that no one would have thought of one without the other. If that were true, I think he'd have a pretty good argument. In fact, that was my view. But after reading the arguments, I don't think it is true. The justices spent a good deal of time on civil war exceptions, arguing whether they were more analogous to absentee voting or mail-in voting. Justice Sonia Sotomayor basically obliterated the Challenger's argument when she referenced the history of states allowing

Starting point is 00:19:01 soldiers in the field to vote before Election Day and the states that created a grace period for soldiers after Election Day, including by mail. This simple fact establishes that we've been receiving and counting votes after Election Day for more than a century, and that each state has handled its own elections independently under the existing federal laws. Even if the justices were to argue precedent and history to some kind of draw, in that case, that should defer to the states which have a clearly defined primary role in administering elections. All of this, to me, clearly supports, A, that Congress has not preempted the states, and B, that Mississippi is actually within historical precedent.

Starting point is 00:19:43 Furthermore, mail-in-voting continued to expand in the 20th century, unencumbered because federal legislators understood these facts. Justice Katanji Brown-Jackson, whom I've criticized in these pages recently, also asked sharp questions about the core argument here, which is really not about election practices, but who decides when ballots must be received and whether Congress prohibited states from making these decisions. Her focus seemed the most important. Until Congress changes the existing federal laws, these states can continue counting votes that arrive late so long as they were cast on time. To me, this pretty much resolves the legal question. On the practice, on Actual outcomes, my opinion similarly reversed. Slate's Mark Joseph Stern, a former Tangle live guest,

Starting point is 00:20:30 and a court watcher whose opinion I respect, noted that more than 750,000 late-arriving ballots were counted as part of a state's grace period in 2024. He called the potential for those votes to be thrown out the single biggest act of disenfranchisement in modern history and a five-alarm fire for democracy. After reading more into this issue, I disagree. For starters, the law Mississippi and many other states didn't even exist six years ago. Going back to a pre-pandemic norm is not a five-alarm fire for democracy. Also, a five-day grace period is already a pretty arbitrary line to draw, which is kind of the challenger's point. Would it be a major disenfranchisement if we were going from a 10-day grace period to a five-day grace period? Washington State's grace

Starting point is 00:21:18 period allows it to count ballots for 21 days after the election. If it had to cut that to meet Mississippi's five-day limit, would that be a five-alarm fire? I doubt we would frame it in those terms, yet it'd be an order of magnitude larger of a change. Obviously, if Mississippi's law goes, then so does Washington's and all the others. And in that scenario, I think voters won't be disenfranchised. Instead, they will just change their behavior to ensure ballots get to their election offices by election day. I struggle to envision a scenario where, assuming the new rules are clearly communicated, a significant portion of voters would be unfairly restricted from casting a vote under this new standard. After all, voters in every state are always working on an established

Starting point is 00:22:05 deadline as it is, and voters in the vast majority of states already have to have ballots in by election day. Even in states with generous deadlines, it's not some foolproof system. Voters are human, which means they'll push up against the deadlines and sometimes miss it no matter what it is. In California, where votes are counted for a generous seven days after the election, 122,000 mail-in ballots were rejected in 2024 for arriving too late, having mismatched signatures, or lacking any signature at all. In my final opinion shift, contrary to the general framing, I also don't think it's at all clear how the court will rule.

Starting point is 00:22:44 Despite some tough questioning, Justice Roberts and Justice Barrett's positions were not obvious to me, and I wouldn't be shocked to see a 5-4 ruling in Mississippi. hippie's favor. That isn't just my view. Damon Root of Reason said under what the right is saying it was too close to call, while advisory opinion host David French and Sarah Isker also said they did not think the final ruling was clear. Amid the blaring headlines, those are court watchers I trust the most. Perhaps most interestingly, I'm not entirely sure which party even benefits more from each potential outcome. Conventional wisdom seems to be that Republicans are pursuing these changes to help win November's midterms, but the evidence is less strong for this than it used to be.

Starting point is 00:23:25 Most of the states with these grace periods are blue, but Democratic voters in today's political alignment are more likely to follow the news closely and be aware of these rule changes. In 2024, higher voter turnout would have hurt Democrats and helped Republicans, and in Red Ohio, Republicans opted to preemptively end their grace period ahead of this challenge, giving them more time to alert their voters about a change. That's to say nothing of active duty military who may be overseas for the November election and often get exemptions for late-arriving ballots. Restricting grace periods could hurt Democrats, but it could hurt Republicans, too.

Starting point is 00:24:04 An alternate theory is that both sides are fighting for honestly held principles, regardless of whether those positions help them electorally. Conservatives challenging this law in Mississippi believe in a stricter view of election day, while liberals defending it want to maximize openness in the process. Ultimately, 72 hours ago, I believed a law requiring these ballots to be counted violated federal law and that the court was going to strike the law down. I also believe that doing so would infringe on voting access. Now, my view is that states are well within their established rights to make changes to their mail-in voting laws

Starting point is 00:24:38 and that the court should and might let Mississippi's law stand. Yet if they opt to strike it down, it won't be a sweeping disenfranchisement of voters. it would just mean bringing 14 states in line with all the rest, and voters in those states adjusting their behavior accordingly. All right, that is it for my take. I'm going to pass it over to Audrey Moorhead, our associate editor, who has a staff concurrence, and then we'll finish up hosting the rest of today's podcast. I'll see you guys tomorrow. Have a good one.

Starting point is 00:25:07 Peace. Thanks, Isaac. This is Associate Editor Audrey Moorhead, back with a staff concurrence. Like Isaac, I always. also changed my mind about this case because of the sharp, historically grounded questioning from justices Sotomayor in Jackson. They convinced me that Congress has thus far left states with the ability to determine early voting and post-election day grace periods, and the Supreme Court would exceed its authority if it were to strike down Mississippi's law. Instead, Congress must act to restrict those

Starting point is 00:25:40 grace periods. Public trust in our elections is eroding, and delays in vote counting are an important factor in that erosion. While evidence of election tampering like Russian collusion or mass ballot fraud is non-existent, the public believes our system is ripe for such tampering, meaning changes to that system are still necessary. As Isaac mentioned, 14 states have laws similar to Mississippi's. Creating a national law to limit grace periods would bring those states in line with the rest of the nation and represent a step toward restoring public trust in national elections. We'll be right back after this quick break. Now it's time for our under the radar story.

Starting point is 00:26:33 On Sunday, pharmaceutical company Eli Lilly reached a $2.75 billion deal with biotechnology company in Silico Medicine to bring drugs discovered and developed by artificial intelligence to market. Ensilico has developed 28 drugs using generative AI, with approximately half in clinical stages of testing. It uses the technology to expedite preliminary research and synthesize molecules more quickly than through traditional methods. A representative for Eli Lilly said the partnership seeks to, quote,

Starting point is 00:27:02 accelerate the identification of promising therapeutic candidates across multiple disease areas, end quote. CNBC has the story, and you can find the link in the show notes. And last but certainly not least, it's our have-nice day story. When a bear attacked the Martinez family's land in Cordova, New Mexico, their 12-year-old dog, honey, half-blind and far-out matched, fought back. The next morning the family found her severely injured, but Honey had done her job, saving dozens of animals, including 60 chickens.

Starting point is 00:27:34 To help provide affordable care for honey, Espanola Humane stepped in to bandage her wounds and give her the medication she needed. Denise Martinez said, quote, she's our little savior. She's been nicknamed the Bear Slayer, and we've just come to find out that the Bear Slayer is afraid of the vacuum cleaner.

Starting point is 00:27:51 K.O.B. has the story, and you can find it in the show notes. All right, everyone. that's it for today's episode. If you would like to support our work, please go to reetangle.com, where you can sign up for a newsletter membership, podcast membership,

Starting point is 00:28:04 or even a bundle membership that gets you a discount on both. We'll be right back here tomorrow. For Isaac and the rest of the crew, this is Associate Editor Audrey Moorhead, signing off. Have a great day and peace. Our executive editor and founder is me. Isaac Saul and our executive producer is John Wall.

Starting point is 00:28:22 Today's episode was edited and engineered by Dewey Thomas. Our editorial staff is led by managing editor Ari Weitzman with senior editor Will Kback and associate editors Audrey Moorhead, Lindsay Canuth, and Bailey Saul. Music for the podcast was produced by Diet 75. To learn more about Tangle and to sign up for a membership, please visit our website at reetangle.com.

Tangle - Mail-in voting before SCOTUS.

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