A new episode of the Insider podcast is now out. Constitutional law professor and Supreme Court expert Steve Vladeck joins Preet Bharara and Joyce Vance to break down oral arguments in an election case (Watson v. RNC), which has the potential to reshape the way ballots are counted. Then, they preview next week’s oral arguments in the birthright citizenship case.
A NOTE FROM THE PRODUCER
Claudia Hernández is a Producer of the Stay Tuned with Preet and Insider podcasts.
Do ballots need to be both mailed and received by Election Day?
On a new episode of the Insider podcast, constitutional law professor and Supreme Court expert Steve Vladeck joins Preet Bharara and Joyce Vance to discuss this key question before the Supreme Court in Watson v. Republican National Committee’s oral arguments.
As Vladeck explains, this issue arrived before the Court after the notably conservative Federal Court of Appeals for the Fifth Circuit invalidated a Mississippi law that allowed ballots received after Election Day, but postmarked on or before Election Day, to be counted.
Vladeck initially believed the Court agreed to hear the case in order to reverse the Fifth Circuit’s decision: “It didn’t take long before I realized that they might have granted to affirm, which is both horrifying and really stupid. And I’m not sure which one bothers me more.”
Considering the textualist argument for not counting the ballots, Vladeck said: “I think the best you can do for a textual argument in support of the Fifth Circuit’s position is that a ballot is cast when it is received. And that receipt in this context can mean different things…Obviously, mail-in voting increases the real and metaphorical space between the voter and the voting official. And I think the question is, is it fair to say the vote isn’t actually cast until it’s in the hands of the state? In which case, maybe you are making an argument that even a postmarked-by-election-day ballot is still coming in late. I guess it seems to me that that’s inconsistent…I think a voter would think that they’ve cast their vote not when someone they’ve never met opens an envelope, but when they’ve taken the last act over which they have control to submit their ballot.”
Listen to the episode to learn more — and, as always, comment below with your thoughts and questions.
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Stay Informed,
Claudia
