➡ Judicial Watch, a legal advocacy group, has presented its case to the U.S. Supreme Court, arguing that federal law requires all ballots to be received by Election Day. They believe that allowing ballots to be counted days or weeks after Election Day is against the law. The Supreme Court is expected to make a decision in June. The case was presented by Paul Clement, who argued that the original meaning of an election included both voting and the receipt of the vote by election officials on Election Day.
➡ The article discusses the historical and legal aspects of mail-in voting, particularly focusing on the requirement for ballots to be received by election day. It highlights a Supreme Court case debating whether ballots arriving after election day should be counted. The author suggests that the court may lean towards upholding the election day deadline, which could impact mail-in voting rules in many states. The article also mentions that some states are already preparing for such a decision.
➡ Francisco Aguilar, Nevada’s Secretary of State, is preparing for potential changes to election law that may stop the counting of late-arriving mail ballots. This comes after the Supreme Court’s conservative majority showed skepticism towards the practice. The decision could affect hundreds of thousands of voters, increasing pressure to vote in person. Judicial Watch, a legal team, is leading the fight to uphold the idea of Election Day, with a ruling expected in mid-June.

Election Day means what it means, you know, the ballot box closes on Election Day. And I think the Supreme Court’s been persuaded by Judicial Watch’s legal argument. A very important week for Judicial Watch and for America, as the Judicial Watch legal team was able to make its plea in person to the Supreme Court of the United States to uphold the federal law that sets an Election Day, the first Tuesday after the first Monday in November, as the day that ballots are supposed to be received. Many states or too many states, have allowed the counting or the receipt of ballots to occur days and weeks after Election Day.

And we had a court ruling in the lower courts, the Fitzer Court of Appeals, that found that to be unlawful. Now the Supreme Court has taken the case up and is expected to rule in June. Judicial Watch led the way in the challenges to late election ballot counting. We filed lawsuit in Illinois. We filed a lawsuit in Mississippi. Similarly, the RNC filed a lawsuit in Mississippi. So both Judicial Watch for the Libertarian Party of Mississippi and the RNC were before the court. We were also joined in court by the Solicitor General of the United States on behalf of the US Government who agrees with Judicial Watch’s analysis that counting or allowing the receipt of ballots after Election Day is contrary to federal law.

The lawyer who made the key argument for Judicial Watch, our clients, the Libertarian Party of Mississippi, was Paul Clement. He did a wonderful job, and I can tell you, and let me give you some background, what it’s like to go into the Supreme Court and watch these arguments in person. It’s pretty intense. The justices, all of them, all nine of them, were very interested in the case. The oral argument went on for well over two hours, which is a pretty lengthy argument. And as I said, the Justices were paying close attention to both the lawyer from Mississippi that was seeking to uphold the Mississippi law that was at issue that allows the counting of ballots that arrive for up to five days after Election Day.

And Paul Clement, on behalf of our client and in partnership with Judicial Watch, made an excellent point presentation and the way it looked. Well, I’ll tell you how it seemed to come out a little bit later, but let’s look to see what Paul Clement’s argument was. So what happens is the Mississippi attorney, I think, Solicitor General, or was it the Attorney General or Solicitor General? Now I’m confused. The Solicitor General, he made his argument, followed by our argument made by Paul Clement. And the argument began with a statement by Paul laying out the nature of what the issue is.

And you’ll see this clip from C Span, which incorrectly labels him as lawyer for the rnc. In fact, he was lawyer for our client, the Mississippi Libertarian Party. So let’s listen to Paul’s opening statement. Mr. Chief justice, and may it please the court. All agree that elections for federal office have to end on the day of the election specified by Congress. And all agree that you can’t have an election unless you receive ballots, and there must be some deadline for ballot receipt. Nonetheless, Mississippi insists that ballots can trickle in days or even weeks after election Day.

That position is wrong as a matter of text, precedent, history, and common sense. Mississippi all but concedes that the original public meaning of election included both offering to vote and the receipt of that vote or ballot by election officials. And of course, the key distinction between voting and an election is an election involves the combined action of voters and election officials, as this court underscored in its decision against Foster. Against voting Love. And of course, Mississippi insists that at the time these statutes were passed, ballot receipt and the casting of the ballot were so inextricably intertwined, no one would have thought of one without the other.

That seems to me to be a damning admission, but it also ignores the advent of field and proxy voting in the Civil War and the enormous efforts that states went to to ensure that all of the ballots, whether by proxy or by field vote, were received by election Day. In the state’s view, all of those Herculean efforts were for naught or were entirely gratuitous. Now the state’s position actually works even worse as a matter of common sense. 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. And if somebody asks who won, the truthful answer is, we don’t know yet. The ballots are still coming in, and they may trickle in for weeks or months, and in fact, they may trickle in for weeks or months, with or without a postmark, in differing ways, in differing states, that reality gives the lie to the idea that we have a uniform national election day. So, great summary of the argument. And what’s even better, you imagine the intense preparations both sides make when prepping for a Supreme Court argument of such importance.

You can’t dismiss the fact that you’ve got, generally speaking, nine pretty darn smart people with a lot of smart lawyers working for them who also bring something to the table. And I got to hand it to Justice Alito, who kind of summed up the argument in a very accessible way to pretty much any American in his commentary as to what election Day means. Listen to Justice Alito muse on what it is Election day means. We have lots of phrases that involve two words, the last of which, the second of which is day, Labor Day, Memorial Day, George Washington’s birthday, Independence Day Day, birthday, and Election Day.

And they’re all particular days. So if we start with that, if I have nothing more to look at than the phrase Election Day, I think this is the day in which everything is going to take place and. Or almost everything. And then we have three points in time. 1844-1840-1872-1914. And we can ask what would people. So you have a birthday. Right. No one thinks that when you get greetings after the birthday, the person’s on time. That’s why it’s a late birthday greeting. Right. So kind of a brilliant insight by. Although a simple insight, but a brilliant one nevertheless.

And you know, what’s going on here is that Mississippi and those defenders of the late arrival of ballots say, well, you know, the voting takes place prior to election Day, and that should be enough, even though the ballots aren’t received until after election Day. And the key response to that is putting your ballot in the mailbox is not the same as putting your ballot in the ballot box. And the powerful language of the straightforward law that federal election day is the date that is set by federal law raises all sorts of other interesting issues about early voting and such.

And Justice Thomas asked our partner in this argument, Paul Clement, about that, and here’s that dialogue. How would you define the day of election? I would say that the day of the election is the day. It’s the last day in which all the ballots are cast and, and they are received into official custody. So how would you treat early voting as compared to late reception of votes? So I would say, I mean, you know, I think the best place to look for a treatment of early voting is the Kreisling decision by Judge Kleinfeld in the Ninth Circuit, because after Foster Against Love, there was a suggestion in Foster Against Love that maybe early voting is a problem.

He rejected that claim based on two things. One is the distinct history of early voting, and the second is the idea that was explicit in this court’s decision in Foster Against Love that election day is the date of consummation. So I would say under our theory, early voting is permissible largely because it has a different history. And because of this idea that the election day is the date where the election is consummate, would you spend a few more minutes on, or at least a little bit more time on the voting during Civil War, there was some suggestion that that’s an example of late reception of votes.

And I think in your intro and was my thinking that it was not that proxy voting was a way to make sure that the, the vote occurred on election day as opposed to afterwards. Well, not surprisingly, Justice Thomas, you were exactly right. So proxy voting is the thing that happened in the Civil War that is most analogous to absentee voting. And the thing that is most striking is I think five states had proxy voting. Every one of those five states required the votes, the ballots to be received by election officials back home by election day. Now that’s an incredibly inconvenient thing that was done in the Civil War to ensure the ballots were received by election day.

And under the state’s view, they didn’t need to do that. Now, it’s really no different in the context of field voting because there were like maybe a dozen states, if you’re not going to count the Confederate states, there are about a dozen states that did field voting. Again, every one of those ensured that the ballots were received into official custody by election day. And of course, most of the states went to enormous efforts to replicate the machinery of the ballot box and everything else in the field and some variation in that. But the one thing that didn’t vary at all was the ballots had to be received into official custody by election day.

So it’s an important historical point and it’s a fascinating issue because we didn’t have mail in balloting essentially until, or as Paul Clement highlighted a version of it, until the Civil War. And immediately after the Civil War, I think it was in 1872, was the first election. Federal election day statute and, you know, other statutes similarly have set election day for first the House, then the presidency and then the Senate with the direct election of senators in the early part of the last century as the election day. We all know the first Tuesday after the first Monday in November.

And there’s really no historic record that states thought otherwise until essentially Covid. There have been exceptions like Washington State has that 21 day rule that goes back a ways, and a state here or there, that’s an outlier. But the idea that, you know, there’s been this long tradition of states allowing counting of ballots in large numbers after election day or that arrive late after election day is just ahistorical. And even though, even if it was, quote, historical, the law says otherwise. So there are all sorts of things that had gone on for a long time that were unlawful under federal law or unconstitutional that The Supreme Court says, well, you know, too bad.

So sad. Too bad, right? You got to follow the law. And then there’s the issue, as I said earlier, of whether just dropping something in the mail is the equivalent of receipt. And I don’t think anyone seriously believes that. But if you’re trying to justify, in my view, the indefensible, you pretend that dropping in the mail therefore allows you as a state to receive that ballot anytime after election day, which is, in effect, what they’re saying. Because if it’s not five days, should it be 21 days, should it be 100 days? And here’s a discussion about that issue again with Paul Clement, who’s the lawyer, despite what the C SPAN graphic says, for our joint Judicial Watch clients, the Mississippi Libertarian Party, the reason I’m focused on ballot receipt is a, it’s what’s directly at issue here, but also B, it’s the thing that to this day, every state considers indispensable.

No state Washington is the one that lets 21 days go by. But no state says that you don’t have to have a receipt ballot receipt deadline at all. And under Mississippi law, it’s not. Despite what they want to tell you, the ballot is not final when it’s submitted. The ballot is final when it’s received by election officials within five days. And you can have all the certifications that this was before election day, and I have it notarized. And if it comes in on the sixth business day, this is the November 11th problem. What the state does is they treat it as a nullity.

And under the state statute, they direct it to be destroyed so the ballot doesn’t become final just when it’s submitted. The ballot becomes final when it is submitted, and under Mississippi law, and it is received into official custody by the registrar within five business days. That’s finality under Mississippi law. And our humble submission is finality should take place on election day. Pretty simple, right? And now the three justices of the Supreme Court who were appointed by Democratic presidents, you know, took the opposition view and aggressively questioned in a way that I didn’t find persuasive at all or even making me nervous that they had a case that would be persuasive to their fellow conservative justices.

And here’s my initial reaction outside the Supreme Court to the oral arguments. Hey, everyone just walked out of the Supreme Court, where the Judicial Watch team was making historic legal arguments to preserve the idea of election Day. The other side wants to allow the counting of ballots that arrive after election Day. Our team made the argument to the court that it’s contrary to federal law. It creates the issue of voter fraud and generally undermines voter confidence. Look, putting your ballot in the mailbox is not the same as putting your ballot in the ballot box. And federal law sets an election day, not on election month.

And we’re hopeful that Supreme Court will agree and bring back the rule of law to our elections in a way that restores confidence. So a really interesting debate. I don’t think the fact that this potential election day law raises issues about early voting is going to stop the Court from saying in the least election day means the ballots have to be received by election day. I think the early voting issue is a bit more interesting. You know, Paul made the argument that perhaps it’s legal. Others may make the argument that perhaps it’s not under the election day statute, and that may come up later, or the court may address it indirectly.

So, you know, as I’m sitting there, remember, it’s only the oral argument. So no one’s promising any vote at the oral argument. They don’t take a vote at the oral argument about how they’re going to vote. What literally happens is after the argument is over, they go back and have into their Supreme Court conference room with the nine justices, and they meet with each other and they take a vote then. And then after that, or contemporaneous with that, they start writing the decisions, either the majority or minority decisions or dissenting decisions. And I couldn’t tell whether we had the majority of the votes.

Now, I could guess that we could, but I wasn’t sure because I could count based on the questioning. And you can look at the full hearing and draw your own conclusions. This is what I love about the Supreme Court. It’s designed in many ways to be accessible to the American people. You can watch the video below. We have a full link to the C SPAN video. I think the transcript is available now. I think we can find that transcript link and provide it to you as well. So you can just read through it and you can see there are seemingly four conservative votes to uphold the notion of election day.

The two votes that I had questions about were Justice Chief Justice Roberts, because he didn’t really ask any questions, and then Justice Barrett, who asked tough questions of both sides. But I wasn’t quite sure where she was coming from or on what she wanted, assurance. So I walked out of the court thinking, oh, you know, I think we’re. I think things are looking good. We got at least four votes. And obviously we just need One more to win. But I wasn’t prepared to say, oh, it looks like the voting is going to go our way. The funny thing is the media thought we won.

I mean, when you see these media headlines from, what is it, cnn? And there’ swhich one is that, that’s New York Times. Oh, wait, we’ll talk about that later. But there were several other stories. There’s the Associated Press or NBC News. Supreme Court Conservatives Appear Skeptical of Mail in Ballots that Arrive After Election Day. Let’s go to the other headline, Supreme Court Appears Skeptical of Counting Mail in Ballots that Arrive After Election Day. So and the other headlines I read about the hearing that I saw, these are people who don’t agree with Judicial Watch on anything and they think we’re going to win.

So I’m not going to second guess that. Right. But the next day I felt a lot more confident because I thought about the hearing because I was there watching it. And, you know, it occurred to me that the three left wing justices provided no safe harbor for any sensible conservative justice to kind of vote with them. Because as you can see from the arguments, it’s either we have election Day set by federal law or we have chaos where there is no set Election Day. The states can choose and pick and choose when they have election day essentially, or what the deadline is for mail in balloting.

And I just don’t think any of those judges or justices, even the ones who I’m not sure about, are going to go on that side. So I’m increasingly confident that we are going to win in the Supreme Court and get an historic victory that will restore the rule of law on this key area of elections to upwards of 30 states. Ballots are going to have to get there on time if things go as I suspect they will go before the Supreme Court. Now, one reason I’m even more, one more reason to even be even more optimistic is this story in the New York Times, which I thought was pretty incredible.

And here it is, some states already preparing for a potential Supreme Court ban on late ballots. And they highlight the skeptical, the skepticism of the conservatives. And this is how the story opens up. Francisco Aguilar, the Secretary of State in Nevada, stepped out of the Supreme Court on Monday, where justices had just heard arguments about the legality of counting mail ballots that arrive after election Day. He immediately called his top deputy. The court’s conservative majority had appeared deeply skeptical of the arguments for continuing the practice. So his message was urgent, he later said in an interview.

He began listing things. We need to start working on and answering and in the middle of midterm election season that he couldn’t wait for a decision to land. Perhaps as a late as June, we have to provide a roadmap for county clerks. Mr. Aguilar, a Democrat, is one of 18 top state election officials in states and territories across the country bracing for the possibility that the Supreme Court will require major changes to election law just months before the midterm elections. Part of the urgency, getting the message out to voters that late arriving ballots may no longer be counted.

Such decisions could affect hundreds of thousands of voters. So boy, oh boy. New York Times says these left wing politicians in the various states that wanted to keep on counting ballots late, that arrived late, they see the writing on the wall too. According to the New York times, at least 725,000 ballots arrived in the time period after election day. So that is a lot of ballots. And what’s the solution as these, as these politicians are kind of prepping, which is what they’re supposed to do to be fair to them, hey, we got to make sure that the public knows they need to get their ballots there on time.

And so there’s increased pressure to frankly vote in person and, and not rely on mail in balloting. I think that should be part of the pressure as opposed to making it even riskier to vote through mail in balloting. But it’s a strong indication that I’m correct in assessing that, hey, it looks like we’re going to win before the Supreme Court. So this has been really a big week for the rule law on elections. This is the most important election law case in a generation. Kudos to Paul Clement, who argued for the Judicial Watch legal team. Kudos to the Judicial Watch legal team, Russ Nobile, Bob Popper, Eric Lee Polarfenides, who leads the entire legal team here at Judicial Watch, and kudos to you, dear Judicial Watch supporter, because we would not be here before the Supreme Court making these arguments that will go down in history in terms of preserving the very idea of election day.

It looks like we’re on the cusp of victory. Of course, the fat lady has not sung yet. So pray that our hopes are well founded and are vindicated when the ruling comes out, likely in mid June. But it looks like we’re going to have a significant uplift right for election integrity so that, you know, allowing ballots to come in after election day and still be counted, that will be no more if things go as it’s suggested, they will go after this historic Supreme Court argument. And I’ll say it Once, and I’ll say it again, the only reason we’re here at this moment, on the cusp of this victory, is because of Judicial Watch’s heavy lifting.

We were taking the lead on this Election Day fight with our litigation, with our legal strategy, with our legal theories, and everyone else followed our lead. And so we’re pleased the RNC stepped up as well, because the RNC used to kind of be AWOL on some of these election integrity issues. And so they played a role here. And kudos to them for standing. And it’s not because they’re, quote, Republicans. It’s because they’re standing with the rule of law. Heck, early. You know, getting the ballots there on time can impact Republicans, too. It will impact Democrats, rural voters.

You know, the New York Times points out rural voters, you know, face more impacts with election delay or mail and ballot delays, and they tend to be Republican. But in Virginia, 73% of the ballots that arrived late in the last election went to the Democrat. So it cuts both ways. This is a nonpartisan issue, and I want to know why aren’t Democrats standing with us to uphold federal law, that Election Day means Election Day? And of course, the Trump administration, they’re standing with us as well. President Trump had an executive order early on, and the Solicitor General of the United States filed an amicus brief, an important amicus brief.

He made argument there on Monday, or, you know, before the Supreme Court recently as well. He was there with Paul Clement, arguing for our side. So it’s a team effort. But the biggest part of the team are you, dear supporters, because we wouldn’t be here without you. None of this is free. You know, this litigation costs money. The education efforts around it costs money. And the only reason we’re able to do it is because we receive voluntary donations from our members, charitable donations. So I encourage you to continue to support our work because I tell you, even if we win, there’s still going to be battles.

And there are other election integrity battles that are underway right now with Judicial Watch and cleaning up the election rolls. We’ve cleaned 6 million names from the rolls thus far. There are 20 plus million more to be cleaned. And if, depending on how the ruling comes down, there may be additional litigation to ensure that the sanctity of Election Day is upheld under the law. But what a great day for Judicial Watch and the American people in the sense that it looks like victory may be at hand. Knocking on wood on upholding the notion of Election Day and balloting, making sure that the ballots are supposed to get there on election day if they’re to be counted.

I mean, it’s to me, a rather obvious issue. Right. Election day means what it means. You know, the ballot box closes on election day. And I think the Supreme Court’s been persuaded by Judicial Watch’s legal argument. And it necessarily, you know, it didn’t mean it was going to go our way. And I think it was our wonderful legal argument, ably and expertly presented by Paul Clementine, that secured to the degree we do get a victory, it will be because of the excellent legal work by the Judicial Watch team. So I’m taking credit for it. I’m president of Judicial Watch, but as an American, I’m thankful for our work, that’s for sure.

Thanks for watching. Don’t forget to hit that subscribe button and like our video down below. Sam.
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