The Dobbs of Voting Rights

“Kamala Harris is the only patriotic choice for president,” writes the NYT editorial board as it enumerates the dangers of another Donald Trump presidency. “It is hard to imagine a candidate more unworthy to serve as president of the United States than Donald Trump. He has proved himself morally unfit for an office that asks its occupant to put the good of the nation above self-interest.”

Well, duh.

With all due respect to the Gray Lady, this is hardly an earth-shattering conclusion. Nonetheless, it’s good to see they are there and publicly so. We can only hope that more conservative outlets, like The Wall Street Journal, will follow suit and expand the developing permission structure for even lifelong Republicans to vote for Kamala Harris, or at least not vote for Donald Trump.

While The New York Times is advocating for Harris, the Republican National Committee is intent on trying to take away the rights of some Americans to have their ballots counted and perhaps to do more: to sow the seeds of chaos when it comes to certifying the results of the election if Donald Trump loses. We haven’t yet circled back to the voting case, RNC v. Wetzel, that we discussed in The Week Ahead last week. The case was argued in the Fifth Circuit Court of Appeals (which covers Texas, Louisiana, and Mississippi) last Tuesday. Tonight is our opportunity to return to this case.

This is a case about mail-in voting and how, or perhaps more precisely, for how long after an election, mail-in ballots can be counted. Lauren Groh-Wargo, CEO of Fair Fight, calls this case “the Dobbs of voting rights,” a reference to the Supreme Court decision that eradicated the right of access to abortion through the end of the first trimester after it had been guaranteed to American women for 50 years.

Mississippi has a rule that says ballots can be counted if received up to five days after election day, so long as they are postmarked by the election day. Rules like that can be extremely important if there is a severe weather event around the election, something that Hurricane Helene drives home. But it’s also an important rule for military voters and Americans abroad, whose ballots may take a longer time to reach home even if they complete their ballots well in advance of the election. It also benefits older voters, people with disabilities, and college students who are out of state when the election takes place.

There are, for the most part, two types of voting cases: cases that try to make it easier for eligible Americans to cast their ballots and have them counted and cases that make it more difficult. This is the latter type of case.

But don’t make the mistake of thinking (or letting anyone tell you) that this is a case about raw political partisanship, with Democrats trying to open up Mississippi’s elections to fraud. The RNC and Libertarian Parties brought the challenge to Mississippi’s law in federal district court in the Southern District of Mississippi. And whom did they sue? They sued Mississippi’s Republican Attorney General and Harrison County’s Republican Circuit Clerk. That means that the law in question, which permits votes to be counted for five days following an election, is being defended by…Mississippi Republicans. They are joined by Democratic election lawyer Marc Elias, who represents veterans and retired persons groups that intervened in the lawsuit.

In other words, this isn’t a crazy radical rule that’s being pushed on Mississippi by outside forces. At least 18 other states, as well as Puerto Rico and Guam, have some version of a law that permits ballots to be counted after election day. It is not unusual. The law that is being challenged in this case is quite literally about protecting people’s right to have their votes count, no matter where they happen to be or what local conditions are on election day.

It’s hard to be optimistic about the Fifth Circuit these days, but it’s possible that this case is a bridge too far even for that court, especially because of the potential impacts on military voters and their families. The panel seemed to find merit in the position staked out by Mississippi officials during oral argument, with judges noting that these sorts of laws are routine and also invoking the Purcell principle, which prohibits changing the rules too close to an election.

Of course, we won’t know how the court rules until the case is decided. But happening right on top of the election, this case has the potential to impact voters’ rights this year. For instance, let’s say the tea leaves aren’t accurate and the Fifth Circuit holds Mississippi’s law is unconstitutional and that they do it quickly. Let’s say that decision is in place when votes are counted. That would mean that Mississippi, and Texas, also in the Fifth Circuit and which also permits late counting of votes, suddenly wouldn’t be able to do so. Voters who mailed in their ballots, relying on existing rules, could have their ballots disqualified. Elections run on certainty and practices voters can rely on when they cast their ballots. This kind of litigation is aimed at upsetting that balance. And while it’s unlikely—there could be delay and even en banc proceedings at the Circuit level—the case could reach the Supreme Court ahead of the election for action on the shadow docket, where the Court could either permit the vote counting law to remain in effect or enjoin its operation, either decision potentially having nationwide impact.

Hopefully, the courts will take steps to protect the election from uncertainty and prevent the RNC from destabilizing the process. They could have brought this lawsuit at any time—the law has been in effect for years. Positioning it to be in play now could be a way of trying to create the kind of chaos that might be used as an argument to prevent certification of election results—if Trump loses. And it would impact more than just the presidential election; Congressional results would be affected too.

But even if mail-in ballots are protected for this election, don’t expect the issue to disappear. It’s likely that we’re about to see the start of another push to roll back methods of convenience that have made it possible for an expanding number of eligible citizens to exercise their rights to vote. And why shouldn’t voting be easy and convenient? It’s a right that Americans should all be able to exercise, whether we are working during the hours polls are open on election day or serving our country overseas.

Can we work around the situation? Of course we can, and it would be smart for voters casting mail-in ballots this year, especially those who are overseas, to get them in the mail as soon as possible. But the principle remains the same. An American political party or government official shouldn’t make it more difficult for eligible voters to participate in the process. That’s not their job. Voters get to pick their elected officials; elected officials don’t get to pick their voters. Elected officials should protect our elections and the right to vote. And we should all be troubled—no matter what party we belong to—when they don’t.

If you’re a paid subscriber to Civil Discourse, I hope you’ll join me tomorrow for a live chat during the vice presidential debate! Walz versus Vance. It should be something, and we’ll talk about while it’s taking place! You should get a notification tomorrow morning when I start the chat, but you can also find it by going to Substack online or in the app and locating the chat button. You’ll see Civil Discourse there, and I hope you’ll join me for it.

We’re in this together,

Joyce