Mail-In Ballots: Supreme Court Says “Later, Dudes!” (But Not Too Late)
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Transcript
24 segmentsSo in a case that was brought by the Republican National Committee, the U.S. Supreme Court has ruled that states may continue counting mail-in ballots that are postmarked by Election Day but arrive several days later. It was a five to four decision. Justice Amy Coney Barrett wrote that federal law requires votes to... cast their ballot, voters to cast their ballots by Election Day, but does not require election officials to receive those ballots by that date, preserving election procedures that are currently used in many states, including here in the state of Michigan. Let's talk about it. Matthew Schneider, the lead investigations in white collar defense practice at Hahnemian, former U.S. attorney, of course, joins us this morning. Matthew, it's great to have you back. Thank you, Chris. Great to be here. So the majority argued here that federal law sets a deadline for when votes must be cast, but not when ballots can be received. How significant is that distinction? It's pretty significant, and there was a lot of dispute among the justices about it. It was quite a bitter opinion. What's important to note here is really what the case is not about. It's not about absentee voting in general. It's not about using the mail-to-mail-in ballots or even about early voting or counting the votes after election day. It's extremely narrow. The issue is whether... counting ballots that are postmarked or mailed by election day, but then they're not received until five days later violates federal law. Can you do that? Can you count those ballots? And the majority said here that election day is the day that you vote, but not necessarily the day that you have to count and receive. The dissent said, no, that's not right. It's election day, not election week. And so, therefore, that election day means you got to get those ballots, you got to receive them, and you got to count them. And to do contrary to that, violates the law. So then how does the, what's the ripple effects here? How does this affect other election laws beyond mail in the voting? So there are 30 different states who have similar laws to Mississippi that allow this to happen. And those states, the ripple effect for them is those laws will stay into place. What the majority in the Supreme Court said is that there are laws about election day and setting those days that Congress passed. However, they didn't prohibit the states from making their own laws about counting. So those laws all stay into place. But this is a case where it's not decided along the Constitution. It's decided by interpreting federal law. And federal law can be changed. And President Trump knows that. And he definitely wants this opinion changed. So that's the next step that we're going to see. That's the next ripple effect. Well, I'm glad you went there because that's where I was going next. So Amy Coney Barrett said that these are issues for...
legislators and policymakers, not for judges. So now this does shift things back, or at least it diverts it from the judges, from the justices, now back to lawmakers. Is that how you see this going? Yes, it's one of those rare cases where it's almost like Congress can overrule a Supreme Court decision because they have the power now to look at the Supreme Court decision and say, we don't like that the way the court came out. And since it wasn't decided on constitutional grounds, but it was decided based on the laws of Congress, we can change those laws. And with Republicans in the House and the Senate... If they can get that bill through, and there's been attempts already, we already know that President Trump is willing to sign that into law, and he's requested that bill to come to his desk. So I think that's the next step that we should be looking for, probably sometime later this year. You touched on it a little bit. I want to circle back to it. So Samuel Alito Lito wrote the dissent, and he said that this decision could create new questions about election administration and voter confidence. How does that play into the decision here? Well, when people talk about election fraud and their disputes about whether there is election fraud or not, but when there is, if people point to election fraud, usually what they're pointing at is mail-in ballots, ballots that come through the mail, belts that actually arrive after election day, because those are the easiest thing to hack and it's the harder thing to verify. And that's precisely what Samuel Alito said. He said... That is a tremendous spillover effect because this opens the door to fraud in all of these states, and now you're signaling to other states that they can pass laws like this, too. So if you want to get a hold on fraud, you would limit this. But yet the court's opinion is kind of opening the door, opening the door to a chain of custody problem where we don't really know where those ballots are. That is his argument. And he's saying that this makes the situation worse. Yeah, and of course the court was narrowly divided. Five to four was the vote. So is this, do you view this as a kind of narrow legal interpretation of this federal election law? Absolutely. It's unlike some of the other opinions that we've seen where there are broad strokes. This was really confined to this. particular set of facts. And that's actually precisely why Congress could override this if they wanted to, because it is so narrow. It doesn't affect such a broad range that Congress couldn't go in and fix this, so to speak, if they wanted to, and then set the path forward that President Trump actually wants. Well, it's very interesting stuff. What's on the docket now for them before they go to recess?
Well, we just had a couple opinions on executive power. Those just came out yesterday. But the big one that's coming up is the birthright citizenship case. That is actually going to be released probably sometime within the next couple hours today. And the issue there is whether or not... Trump and his executive order can affect what he believes is birthright citizenship. Also, debates on both sides, that was a hotly contested oral argument as well. Matthew and our many conversations, both on the air and off, you know I'm a brilliant legal mind. And so in all of my research onto this, it feels like the precedent has been set here. This feels like something that the Supreme Court is going to break with the president on. Is that fair? You mean break against the president? Yes. If you listen to the oral argument, which I did, it didn't go great for the government. And the justices, even all of the conservative justices, were really criticizing the president's side of the argument. So unlike some arguments where you... People are coming out. This one was pretty strongly against President Trump's position on birthright citizenship. Now, that doesn't mean that we know what the answer is. We only know what the justices questions were. And sometimes they ask questions not because they really want... the parties to answer them, but they're asking questions so that they can alert the other justices that these are issues that they want to talk about. Yeah, and you go back to the late 1800s, the U.S. versus the Wong Kim Arc case feels like that's going to be at play here as well. And that was something that they had discussed in those oral arguments. Yeah, really the question is, is when you're here in the United States and you're unlawfully present, are you subject to the jurisdiction thereof of the United States? And what the government argued in this case was that you're not, you're here temporarily, and you're not subject to the jurisdiction thereof. The counterargument to that that the justice is raised was actually these people who come here illegally, they want to stay. They're not here temporarily. They're here permanently. And therefore, they've subjected themselves to the loss. That's really the issue that the court is deciding. When do they go on break? Tomorrow. Tomorrow. Okay. So we're going to get a flood of these decisions. Hopefully, as you said, in the next couple of hours. Matthew Schneider, always appreciate the insight. Thank you, my friend. We'll talk again very soon. Thank you. Yeah, you got it. We'll take a break coming up on the other side, get you caught up on some headlines. Also, this idea of the Democrats being in a pickle, I'll tell you why. It's next on Jerry morning.