By admin 
The Supreme Court shot down a fringe attack on American elections Monday, rejecting an effort to nullify mail ballots that are cast by Election Day but arrive shortly thereafter. About 30 states currently count these ballots, and by a 5–4 vote, the justices let them continue to do so. Justice Amy Coney Barrett’s majority opinion in was straightforward: Congress has never passed a law prohibiting this practice, and until it does, states have constitutional authority to allow it.
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Remarkably, four justices—Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh—dissented from that holding. Alito’s opinion for this far-right bloc insisted that Congress covertly outlawed late-arriving ballots when it enshrined the date of federal elections into law. (It did no such thing.) He further fanned the flames of Donald Trump’s fever-dream conspiracy theories, writing that the majority’s decision “creates greater opportunity for fraud and risks further undermining the public’s confidence in election integrity.” Instances of “voter fraud,” he insisted, “are not hard to come by,” and Monday’s decision will allow for “voter manipulation.” The ruling “will only exacerbate voters’ distrust” by removing a “hurdle for bad actors seeking to stuff ballot boxes when early election results suggest a tight race.”
On a pop-up bonus episode of Amicus for Slate Plus members, co-hosts Dahlia Lithwick and Mark Joseph Stern discussed Alito’s paranoid dissent and its dire implications for the Supreme Court’s future election cases. Part of their conversation, below, has been edited and condensed for clarity.
Dahlia Lithwick: This is objectively good news in one sense, but also a chillingly close split in a case that should not be hard. But the court got to the right place, and that’s what smells like winning these days?
Mark Joseph Stern: It’s terrifying what a squeaker this is. I’m especially disturbed that Kavanaugh dissented and joined the part of Alito’s opinion that rants about “absentee-ballot fraud.” I had hoped he would find his way toward reason and understand that this was a Hail Mary case from Republicans who just wanted to disenfranchise people. But in the end, he sided with Alito. It’s a very ominous sign that his brain has been pickled by Fox News and he has cast his lot with the bad guys. I’m happy these state laws were upheld, but this should have been 9–0, with a one-page decision saying that there is simply no federal law that governs late-arriving ballots.
In recent presidential elections, the court acquitted itself pretty well. There were a lot of ridiculous lawsuits that challenged a lot of ballots, and yet, with a handful of exceptions, we didn’t get weird Donald Trump craziness at SCOTUS. Yet here’s Alito, bringing his own crazy to the table, suggesting that any ballot that’s counted after Election Day is a lie. That’s chilling.
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It’s clear that there are four justices who accept at least some of Trump’s big lie about how the 2020 election was stolen through mail ballots. You can’t come away from Alito’s opinion without concluding that these guys believe that all late-arriving ballots are fraudulent, and that the act of counting them somehow taints the result of the election. There’s all kinds of language in Alito’s opinion about how these ballots are especially susceptible to fraud and are potentially going to “flip” the “outcome” of elections. Of course, they don’t “flip” the outcome; they just decide it, because the outcome is when every valid vote is counted, and these are valid votes! He spins all these ridiculous hypotheticals about how people could “recall” their ballots, which is not something that anybody actually does. He basically claims that this decision will facilitate voter fraud when that is just not in evidence.
I really worry about the Fox News brain on display here. I worry that these four justices are so closed off from reality and the outside world. It seems as if they are not reading real news or talking to normal people; they are absolutely on a Fox News IV drip. They are mainlining Trump’s Truth Social account, right? They really do believe that blue states are rigging federal elections and that it’s their job to stop it. And even though Congress has not enacted the law that they want to see, they’re just going to write it into the statute themselves. When the 5th Circuit does that, as it did here, we’re used to it. But these are Supreme Court justices. And I am gravely concerned about what happens if they can just get John Roberts or Amy Coney Barrett on their team in one of these cases, as they may next term. It would be absolutely catastrophic. This could have been catastrophic! It was one vote away from being one of the biggest disasters of the term.
Alito’s purported concern here is people’s “confidence in our elections”—like, if we could just constrict voting rights, people would believe in voting again, or we just need to convince everyone that what the Framers really wanted was for Election Day to be the day when votes are counted. And there is so much cynicism in that play. Give them a urine test, because that is cynicism on steroids. And it is very, very hard to hear from somebody who knows better at every level.
He has laid out something that Republicans can now cite every time they claim that voter fraud exists. They can’t cite the facts or reality, but they can point to an opinion by a Supreme Court justice, joined by three others, that says that this is a real problem and the majority wouldn’t let them fix it. It’s not going to be pretty to see how that plays out in 2026 if there is a contested election and a close vote and one state comes down to a small tally of late-arriving ballots. These guys are going to go HAM.
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