Today’s SCOTUS rulings: ballots and agencies
It’s the end of June, and that means we hear a lot from SCOTUS. Today we have the following:
Barrett and Roberts join the leftist justices in ruling that states can accept ballots that arrive after Election Day as long as those ballots are postmarked before Election Day. That wouldn’t be a bad idea if in fact the postmark rule was enforced and the postmarks could be validated, but the problem is that there is plenty of evidence that in some states this is not done, and non-postmarked ballots are even accepted. This makes it ripe for fraud occurring after the polls are closed, when the authorities counting the ballots know exactly what they need to put a candidate over the top.
At least 10 states (California, Illinois, Maryland, Minnesota, Nevada, New Jersey, New York, Pennsylvania, Washington and West Virginia) accept ballots with missing or illegible postmarks that arrive after Election Day. …
… election officials can even rely on the date a voter writes on their envelope as evidence a ballot was cast on time.
I have looked, but have so far been unable to determine, whether SCOTUS has stated there must be a postmark of some sort. But my hunch is that they did not, and that they just have deferred to the states and the rules each state has set for that.
…[A] related federal statute, the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), confirms that while federal law dictates when ballots must be cast, state law dictates when they must be received….
The electorate’s choice is made when voting is complete, not when ballots are received. The most recent amendment to the Presidential election-day statute bears this out. …
In sum, the election-day statutes require the electorate’s choice to be made on election day. That occurs so long as election day is the deadline for individuals to vote—as it is in Mississippi. But the election-day statutes do not set a deadline for ballot receipt, so they do not prevent Mississippi from counting ballots postmarked before election day yet received afterward.
This result is unsurprising. Roberts was almost certainly going to be averse to challenging the status quo on this issue, and Barrett often follows Roberts. My initial reaction on hearing the ruling was that Trump would renew calls for the SAVE Act. And sure enough, that’s the case.
Another SCOTUS decision announced today is that a president, as head of the executive branch, can fire employees of the executive branch. This would seem obvious, but it had to be made clear. This time, Roberts and his sidekick Barrett ruled with the conservatives to make a 6-3 result. The Federal Reserve is declared an exception, however.
SCOTUS has yet to announce the result of the birthright citizenship case, although it’s supposedly coming soon. I predict they will keep the present policy, and that it will also be 6-3 with Roberts and Barrett being the determining votes going with the liberals. I say this because Roberts tends to preserve the status quo, although of course not always.
But that would be my prediction: that it will take an act of Congress to redefine the policy to exclude tourist birthright citizenship, for example (the current case involves not an act of Congress to do this but an executive order from Trump). If such a statute were to be passed by Congress, would it be ruled constitutional? I think it would probably pass muster, but that depends on the Court’s ruling in the present case in terms of the definition in the 14th Amendment. However, if the right loses Congress in the 2026 midterms, or even if it keeps Congress but fails to end the filibuster for the vote on the subject, such a statute won’t be passed.
You left out the SC would not hear challenge to the bogus NY case against Trump
I heard what I think is the reasonable solution to the question of ballot arrival dates: in many states, mass mail-in ballots are now A-OK. So be it; it’s a federal system.
But NO ballot gets counted until ballot RECEIPT has been cut off. A week, two weeks (just how bad IS the USPS these days?) – whatever: no ballot is counted, and therefore no question is decided, until all allowable ballots are in.
I could live with that. I mean, it seems stupid in our present day, but back when horses were involved in delivering mail, we didn’t have one- or two-day cross-country delivery times, so I’m game.
Oh – and HANDS OFF THE ELECTORAL COLLEGE.
I think the birthright citizenship case ends up 7-2, with Roberts obviously writing the majority opinion. I don’t see how you can change the longstanding interpretation of what is fairly clear constitutional text by statute much less an executive order.
— Variant
They may leave it unchanged, but the Constitutional text isn’t necessarily clear. The meaning of words changes with time. ‘Subject to the jurisdiction of’ didn’t necessarily mean to the people who wrote it what it looks like to us now. It’s at least a reasonably debatable position, and the argument about it has gone on for decades.
Jamie has an interesting idea: no counting of ballots until all have arrived, so people who would be tempted to “discover” ballots would not know how many needed to be discovered in order to win. Of course this is a state decision, and no matter what the state requires, party officials would discover ways to know how many votes they need to add to the total in order to win a race. What is really needed is a civic sense that allows the preference of the voters decide a race, but that is probably asking too much.
So we’re never going to be allowed to have honest elections…super. It was a nice run America.
@Variant:I don’t see how you can change the longstanding interpretation of what is fairly clear constitutional text by statute much less an executive order.
It was clear at the time it was adopted that it did NOT impose birthright citizenship, because birthright citizenship was imposed by Supreme Court ruling thirty years later in the face of laws made since the Fourteenth Amendment that denied birthright citizenship. The man who proposed the Fourteenth Amendment explicitly said that citizenship
From 1868 – 1898 Americans could read. Judges are not issued secret Constitutional decoder rings that let them discover that everybody else is reading wrong. The Chinese Exclusion Act was written and passed after the Fourteenth Amendment, and an 1873 Supreme Court case said the Fourteenth Amendment did not create birthright citizenship. If it was “fairly clear constitutional text” these things would not have happened.
@Robert Sendler:So we’re never going to be allowed to have honest elections… It was a nice run America.
When had we had honest elections? We’ve had some places and some times in our history with reasonably honest elections; I don’t know when you think America was working well but I can guarantee you there were crooked elections at that time. For example, a crooked election in 1948 gave “Landslide” Lyndon Johnson his nickname.
The sad trombone toots
‘no elections are honest,’
infinite cynicism on display.
Nothing is over until we decide it is! Was it over when the Germans bombed Pearl Harbor? Hell no!
@Niketas Choniates: When had we had honest elections?
When have we had clean, uncontaminated food? Common FDA action levels for insect parts per specific food serving include:
Pasta: Up to 225 insect fragments per 225 grams.
Peanut Butter: Up to 30 or more insect fragments per 100 grams.
Chocolate: Up to 60 insect fragments per 100 grams.
Wheat Flour: 75 or more insect fragments per 50 grams.
https://en.wikipedia.org/wiki/The_Food_Defect_Action_Levels
Mmm … insect fragments. 🙂
Anyway. NC’s comment is a type of the Excluded Middle Fallacy. We don’t live in an all-or-nothing political world, but one with one many shades of gray.
We don’t expect all elections to be perfect. We can live with some degree of imperfection, but it’s getting worse and I’d say we are well past the allowable level of insect fragments in our elections.
Chocolate has the least chitin.
@q:Anyway. NC’s comment is a type of the Excluded Middle Fallacy.
It most certainly isn’t, and anyone who bothers to read what I said will see for themselves. Silly to repeat it when the original is right there…
No point in strawmanning me really. Didn’t say there was no middle between perfectly honest and entirely crooked. I said there’s always been crooked elections as well as clean ones in this country. I was responding to an excluded middle comment by pointing to the middle.
We can live with some degree of imperfection, but it’s getting worse and I’d say we are well past the allowable level of insect fragments in our elections.
There’s nothing here I would disagree with.
NOW – Justice Samuel Alito on birthright citizenship ruling:
“In my judgment, the court has made a mistake that will seriously affect the country’s future.”
Suppose that a person’s only connection to this country is that he was born here to a mother who was present just long enough to give birth and then quickly return to her native country.
Suppose that country is a strategic adversary or enemy of the United States. Suppose the child NEVER visited the United States while grow and was inculcated with hatred of this country.
According to this court, now, that person is a citizen of the United States. He can enter and leave the country as he pleases. He can travel the world on a US passport.
Even if he plots to harm this country, he cannot be deprived of his status as a citizen, at least under current precedent.”
@insiderpaper
Sad trombone keeps tooting.
Re: Birthright citizenship. Challenging a view of the law that is widely accepted needs to be done delicately, and not rushed. First, you publish and circulate arguments for your position and let them percolate through the legal academy and think tanks. (There are plenty right-of-center think tanks who employ conservative legal scholars.) You let that scholarship develop over time. Then, when the time is right, you find or create a test case that focuses the courts on the issue that you want to have decided in the most favorable circumstances you can muster, and without extraneous issues that might distract the court.
Or, you wait about ten minutes after it is first seriously proposed that the citizenship clause of the 14th amendment doesn’t apply to the children of non-legal residents, issue a quickie executive order that raises a whole host of extraneous issues about Article I versus Article II powers, and let it ride. But then you are virtually guaranteed to lose. And that is what just happened.
And now the movement to re-interpret the citizenship clause of the 14th amendment is effectively dead. A constitutional amendment is the only path forward on that front.
F: What is really needed is a civic sense that allows the preference of the voters decide a race, but that is probably asking too much.
That would be a high trust society.
GPT: A 37% “most people can be trusted” rating (of the USA) indicates low trust (it’s well below the high-trust countries, which are around the 60–70% range).
— om
NC is right, pretty much 100% on this point. American elections have a corruption problem today, but there have been times in the past when it was much worse. Elections in the time of the Founders make modern-day California look like a model of rectitude.
— Bauxite
Which is exactly what they did. The premise that birthright citizenship was being wrongly applied has been a growing and circulating argument for decades in just those circles.
— Bauxite
Which is utterly impossible. Too many powerful interests are politically dependent on the status quo to allow that. They’ll inevitably turn it into just the sort of distracting chaos we see now.
–Bauxite
Or simple legislation might work. Which brings us back to the same old same old path forward: slow, steady grinding out wins. Contesting elections. Contesting public opinion.
Regarding Barrett, I don’t know why she’s lining up with Roberts so often, though I have a nasty fear that it might come down to a strong desire to ‘not be hated’. Many people have that tendency. Anthony Kennedy, IMHO, suffered from it. Court watchers used to talk about ‘the Greenhouse Effect’, referring to Linda Greenhouse, the NYT’s legal writer. Apparently it used to really torment Kennedy to read some of what they wrote about him when he sided with the pro-Consitution side.
It’s seen in both sexes but esp. common in women. I think Sandra O’Connor suffered from a touch of it.
If so, Barrett’s going to discover that being a SCOTUS Justice means being hated by millions of people. It comes with the job, no matter what rulings are made.
Roe was supposedly ensconced forever after Casey. But it eventually was corrected. Acknowledgement of gun rights have advanced by leaps and bounds over the last 10 years. SCOTUS judges sometimes reverse themselves.
Nothing is settled except in the very short term.
Our Constitution was made only for a moral and religious People,” “It is wholly inadequate to the government of any other.”
“ If so, Barrett’s going to discover that being a SCOTUS Justice means being hated by millions of people. It comes with the job, no matter what rulings are made.”
Only one side threatens violence. That tends to help the cowards find clarity.
HC68 – As I read that decision, there were 3 votes to uphold the EO and 1 (Kavanaugh) who would have held based on an existing statute and suggested that the 14th amendment did not require birthright citizenship.
So, even if you add Kavanaugh to the dissenters who would also, presumably, vote to uphold a simple legislation, that only gets you to 4.
4 < 5, so that's game over for anything short of a constitutional amendment.
Bauxite:
I just wrote a post to that effect, before I saw your comment. I think the only way is an amendment. I also wrote that back in April, when the question was coming up before the Court.
However, I disagree slightly on one thing. I didn’t explain this in my post, but I think Congress nevertheless should try to pass a statute clarifying the definition (if they have enough support to pass it, and do so before the midterms). If passed, it would be challenged of course. Then SCOTUS would almost have to hear the case because if it didn’t hear it, then I think it would be that the law would stand. If it did hear it, revisiting the issue, someone like Roberts might actually come up with some tortuous reasoning why it was okay for Congress to do this despite his previous opinion about the EO – in other words, he might change his mind. It’s not impossible, although unlikely. At any rate, I think a Congressional statute would probably force SCOTUS to consider the issue again and clarify whether changing the birthright rules would HAVE to be done by an amendment.
neo – I’m not unsympathetic to the idea of revising the existing statute and letting the court strike it down. I don’t think it will work, but that doesn’t mean it isn’t worth doing.
The problem is that I don’t see how you pass it using reconciliation, there’s no way in hades that it would get past the filibuster, and there is no sane universe where it makes sense to abolish the filibuster to pass a statute that starts with 5 SCOTUS votes against it.
Now if you could get a Congressional majority and president that were able to pass it over a filibuster? That might influence Roberts. But, at that point, you’re not all that far from a Constitutional amendment anyway.
Defending the sad trombone by citing election practices in the early 1800s is a bit rich considering who was allowed to vote back in those old timey days; dead white land-owning males predominantly.
Then again ballot harvesting, no identification required, vote by mail; it’s all the same, toot, toot, toot.
Bauxite:
That’s why I wrote “if they have enough support to pass it.” I don’t think they do, not for a statute that – as you point out – already has the Court on record as being against the principle it’s trying to legislate.
Nothing of this magnitude can acceptable by a 5-4 vote. Period. One vote. Nope.
Mm-mm, insect fragments! Isn’t that a globalist plot?
— Bauxite
Yeah, but if Barrett had held there’s a fair chance Roberts would have too. He doesn’t like being the decisive vote against his supposed ‘allies’. A lot of the 6-3 decisions that went our way would have been 6-3 the other way if Barrett had flipped, or so I very strongly suspect.
The mixed bag of rulings and decisions from the Roberts court. Or is it the Trump court as Democrats like to call it? Seems that label would be hard to swallow after this ruling, but of course that won’t stop Democrats from doing it in the future.