WASHINGTON — Mississippi’s solicitor general was caught flat-footed during oral arguments in a critical mail-in-ballot case before the Supreme Court Monday, prompting liberal justices to step in to help him out.
Scott Stewart — who successfully argued the 2022 case Dobbs v. Jackson Women’s Health, in which the court struck down Roe v. Wade — was staggered by hypothetical questions from conservative justices while defending a Magnolia State law allowing the counting of mail-in ballots up to five days after voting closes, so long as they are postmarked by Election Day.
After Trump-nominated Justice Amy Coney Barrett pressed Stewart about whether states could allow voters to recall mailed ballots before Election Day, liberal Justice Ketanji Brown Jackson intervened.
“This case is not about a Mississippi practice or policy related to recalling ballots,” said Jackson, who added that she was “a little confused about those kinds of policy questions.”
The newest justice told Stewart that the longtime practice of allowing states to run their own elections “actually is pointed in your favor.”
The unique case pitted the red state of Mississippi against the Republican National Committee, state Libertarian Party, and Trump administration, all of whom opposed the pandemic-era policy.
At least 14 other states have similar laws — including California, New York and Texas. Nearly 30 states have grace periods for absentee ballots, which are most often used by the military and US citizens overseas.
In another exchange, Justice Neil Gorsuch asked Stewart whether states could allow a voter to film themselves postmarking a ballot on Election Day, then have their brother submit it three weeks later.
“Why do you fight the premise?” Justice Sonia Sotomayor interjected after the Mississippian admitted he had “some concerns” about that scenario.
“If the state wants to make [a relative] a notary … a military officer, if it wants to make it a Supreme Court justice, if it wants to make it anyone, as long as it’s done by Election Day, that’s what’s counts, correct?” she contined.
Conservative Justice Samuel Alito then told Stewart that Sotomayor was “asking you what, I think, she intends to be a friendly question.”
All three Democrat-appointed justices sounded sympathetic to Mississippi, while conservative justices Gorsuch, Alito, Clarence Thomas, and Brett Kavanaugh appeared to lean towards overturning the state law.
Paul Clement, representing the Libertarian Party of Mississippi, argued that by setting the first Tuesday after the first Monday in November as a national Election Day in 1845, Congress inherently required that voting wrap up on that day.
“If somebody in Gulfport the day after the election asks, ‘Is the election over?’ the common sense answer is, ‘No it’s not, the ballots are still coming in,” Clement argued. “That reality gives the lie to the idea that we have a uniform national election day.”
At the same time, the attorney insisted he was not arguing to make early voting illegal, a point with which all sides agreed.
The case, Watson v. RNC, comes amid President Trump’s push for Congress to tighten restrictions on on mail-in ballots and enact a proof of citizenship requirement to vote in federal elections as part of the Safeguard American Voter Eligibility (SAVE) America Act, which faces an uphill battle in the Senate.
A decision is expected by the end of June.
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