The Supreme Court Rejected a Bonkers Idea About Voting by a 5–4 Margin. Next Time We Won’t Be So Lucky.

The Supreme Court’s 5–4 decision in Monday’s case was a small victory for voters in recognizing that states have the right to accept ballots that are cast by voters, including military voters, by Election Day but that arrive in election offices a few days later. But that same states-rights principle may come back to bite voters in a far more significant case out of Arizona that the court to hear next term. At issue in is whether Arizona can reject voter registration applications from eligible people who fail to provide proof of citizenship like a birth certificate or naturalization papers. A decision in favor of Arizona’s mini SAVE Act could disenfranchise literally millions of voters for the 2028 elections.

In what should have been a no-brainer, Justice Amy Coney Barrett, joined by Chief Justice Roberts and the three liberal justices, ruled by the tightest of margins in Watson that federal law setting a uniform “Election Day” for federal elections does not prevent states from accepting late-arriving ballots that are cast by Election Day. The Constitution lets states set the rules for conducting congressional elections, but gives Congress the power to override those rules. It also gives Congress the power to set a uniform Election Day, which Congress has done for all federal elections across a number of statutes spanning two centuries.

The Republican National Committee, seeking to limit mail-in voting opportunities in line with President Donald Trump’s relentless attacks on the integrity of the voting system, challenged a Mississippi law that allowed timely postmarked mailed ballots to be counted if state officials receive them up to five days after Election Day.

The case turned on whether when Congress fixes the date for an “election,” it is setting the date by which voters must choose their candidates or the day in which voters make that choice and election officials receive voters’ ballots. Justice Barrett relied upon the common understanding of the meaning of the word “election,” along with the history of Congress passing Election Day statutes, and the longtime practices of many states to accept ballots arriving after Election Day. Mississippi’s argument that it had the right to count these ballots arriving soon after Election Day seemed so obvious that I was shocked when the United States Court of Appeals for the 5^th Circuit that Mississippi’s five-day receipt deadline violated federal law. The four dissenters in this case did not think it so obvious.

The Supreme Court oral argument in Watson revealed that some of the more MAGA-friendly justices, including Justice Samuel Alito, were buying into a fever dream of voter fraud that could somehow justify limiting mail-in balloting opportunities. And in his dissenting opinion in Watson, joined by Justices Neil Gorsuch, Clarence Thomas, and Brett Kavanaugh (in part), Alito pumped up fears of ballot harvesters, fraud, and loss of voter confidence to justify his stingy reading of the election statute. The argument connecting the deadline to fraud was an embarrassment, and Barrett easily swatted it down: “Plaintiffs and the dissent argue that if we uphold Mississippi’s law, States could put party bosses, ballot harvesters, or Uber drivers in charge of collecting ballots. … Yet this would also be permissible under their interpretation, so long as the ballots are delivered by election day.”

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Watson is a small victory for voters—small because not many voters cast these late-arriving ballots and voters eventually would adjust to earlier ballot deadlines. The greatest significance of Watson is that a court majority (barely) rejected a bonkers reading of a federal statute on the basis of voter-fraud fantasies; had the court agreed with the RNC, it would have signaled that the court would avoid text, history, and precedent to further constrict voting. The scary part is that four justices were willing to do just that.

But a far more worrisome development on Monday was the Supreme Court’s decision to hear Mi Familia Vota out of Arizona next term. Arizona is one of a growing number of states that requires documentary proof of citizenship before one can register to vote. Unlike voter ID laws, where the disenfranchising effects are uncertain, we know that these laws keep thousands of eligible voters off the rolls—when Kansas had a law like this, it kept 30,000 people off the rolls for the few months it was in place while stopping no noncitizens from voting. If these laws can be put in place in many Republican states before 2028, millions of eligible people could be kept off the voting rolls, even if Congress never imposes this on a national scale through the Trump-promoted SAVE America Act.

The Supreme Court in Mi Familia Vota agreed to decide two questions (there are other petitions in the case raising even more questions that the court has not yet acted upon). First, does either a federal consent decree that Arizona entered into 2018 or a federal law, the National Voter Registration Act, prevent Arizona from rejecting voter registrations when voters don’t produce documentary proof of citizenship? Second, does that same federal law stop Arizona from trying to purge people it thinks are not U.S. citizens within 90 days of an election?

It seems more likely than not that a majority of justices will side with Arizona when the court hears the case next year. Unlike Watson, where the RNC’s arguments bordered on frivolous, here there are more difficult questions about interpreting federal law that the court could resolve, as it did in Watson, in favor of the states’ rights to set voting rules.

So people can rightly celebrate voters’ minor victory in Watson. But don’t mistake the Watson ruling for some indication that the court stands ready to read federal and state election laws to protect voters. Next time around, a state victory would mean a voter loss.

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