Predicting The Future Is A Mug’s Game

NEW: Seems to me #SCOTUS likely to deliver a defeat to Trump and rule states can count ballots received after Election Day, with Roberts, Barrett and maybe Kavanaugh joining the liberalshttps://t.co/Dutb6J6WUP

— Josh Gerstein (@joshgerstein) March 23, 2026

Not all justices made clear where they stood on the issue during oral arguments Monday, but several questioned whether the RNC’s position — that votes can’t be counted after Election Day — would also mean votes can’t be counted before Election Day. Millions of Americans rely on early or absentee voting.

Lawyers for both the federal government and the RNC insisted that they are not trying to end those practices.

“We agree with both sides that early voting is still acceptable,” Solicitor General John Sauer told the court, citing Civil War practices. “There could be a process where ballots are being received earlier, but that ballot box has to close on Election Day.”

That answer didn’t seem to satisfy Chief Justice John Roberts, who suggested Sauer was making an arbitrary decision to treat early voting and late receipt of ballots differently.

“I’m not sure I understand how that point is responsive to the point that if the Election Day is the voting and taking that it has to be that day,” Roberts said. “Maybe you’re not saying anything other than, well, that’s different.”

“It’s a challenging question,” Sauer replied.

Justice Amy Coney Barrett jumped in with a similar question after the RNC’s lawyer, Paul Clement, said federal lawmakers involved in passing a uniform Election Day law in 1845 would have found it “unthinkable” to count ballots after Election Day.

“Isn’t that true of early voting, too?” Barrett said. “Why is that permissible? If we’re just going to say historically it just needs to look like it always looked, how come those features fall out?”

Justice Samuel Alito gave the most voice to concerns President Donald Trump has repeatedly aired and amplified about public suspicion driven by vote tallies potentially being swayed by late-arriving ballots.

“We are moving in this direction: We don’t have Election Day any more,” Alito said. “We have election month or we have election months, early voting can start a month before the election. The ballot can be received a month after the election. “

“Some of the briefs have argued that confidence in election outcomes can be seriously undermined if the apparent outcome of the election on the day after the polls close is radically flipped by the acceptance later of a big stash of ballots that flip the election,” Alito said.

As Mark Joseph Stern said, Alito is marinated in MAGA conspiracy theories.  As critics have pointed out, that “big stash of ballots” are votes that need to be counted. Alito is betraying a basic ignorance about how elections work. 

Which is concerning, but hardly surprising. It’s also not the issue before the Court. The strongest legal grounds Alito could muster was claiming fraud, based on his ignorance. But fraud requires extraordinary proof. In civil law, fraud is the universal solvent that undoes almost any benefit earned from the fraud; but for that reason it is very challenging to prove. Can Alito decide it’s proven anyway? Yes. Can he get at least four more justices to agree with him? Doubtful. 

Stern thinks he can. But Stern offers no evidence for his extraordinary claim, either. The “liberals” on the Court are unlikely to back Alito’s nonsense, and Barrett and Roberts make 5. Will Gorsuch go with Alito? Who cares?

To me, the interesting question is the legal one: what are the grounds for relief? What, in legal terms, is the cause of action? Alito created some insane ones to basically say “states rights” in overturning Roe. Roberts also went for “states rights” to gut the VRA. “States rights” is more of an amorphous political concept than it is a constitutional provision. But states do have clear constitutional authority over elections, authority Congress can to some degree control (which actually makes the arguments against the VRA even weaker). Where does the Court get the authority to play Congress and invalidate state election laws because they don’t like the electoral outcomes?

I just don’t really see 6 votes for Alito’s position.  OCICBW.

Predictions are a mug’s game.