New Supreme Court Case Reopens Question About the 2020 Presidential Election

Election workers process mail-in and absentee ballots at West Chester University in West Chester, Pa., on Nov. 4, 2020. Matt Slocum/AP Photo

Commentary

The Supreme Court’s June 29 decision in Watson v. Republican Central Committee has reopened an unanswered question about the integrity of the 2020 presidential election between then-incumbent President Donald Trump and his putatively successful challenger, President Joe Biden.

I first raised this question in a May 11, 2021 essay for The Epoch Times. When I wrote that essay, some were claiming that the 2020 election had been marred by multiple irregularities, including vulnerable voting machines, corrupt counts, and manufactured ballots. I was in no position to judge the merits or de-merits of those claims, and I still am not.

However, my essay noted that the extended mail-in ballot procedures of many states seemed to violate federal law. I further explained that these procedures probably flipped at least one swing state—Pennsylvania—from Trump to Biden. The illegality of extended mail-in ballot schemes, I wrote, was the “elephant in the room” that everyone was ignoring. Even critics of the election were disregarding it, presumably to avoid seeming to oppose popular provisions for legitimate absentee voting.

Of course, the 2020 presidential election also had many defenders. Strikingly, though, to my knowledge, no one—no one—has attempted to rebut my conclusion that extended mail-in voting violated federal law.

Now, my legal concerns have been reinforced by the Supreme Court’s opinion in the Watson case. To understand why, let’s start with the Constitution.

What the Constitution Says

In general, the Constitution leaves regulation of presidential elections to the states. But the American Founders knew that an election held over an extended period of time was an invitation to what Alexander Hamilton called “cabal, intrigue, and corruption.”

So the Constitution grants Congress power to limit how long presidential elections may last. Article II, Section 1, Clause 4 reads as follows:

“The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”

Thus, Congress may choose a single “Time” in which the people vote for presidential electors and a single “Day” in which presidential electors vote for president and vice-president.

What Congress Did

Under the Constitution, Congress may opt for a “Time” longer than a single day for the people to choose presidential electors. In 2022, Congress amended the law to permit that. At the time of the 2020 election, though, Congress had opted for a single “Election Day”—the first Tuesday after the first Monday in November.

Congress also had created a few exceptions. One exception allowed absentee voting by U.S. military members, their families, and U.S. citizens living abroad. Another exception allowed state legislatures to choose electors on a later day if, for some reason, the popular vote was indecisive. Outside those exceptions, federal law contemplated that everyone would vote on the first Tuesday after the first Monday in November.

Of course, you might respond by saying that Congress’s designation of “Election Day” set only a deadline for voting—that people could cast their ballots before then. One problem with this interpretation is that courts do not construe statutes in ways that defeat their purposes, and treating Election Day as a mere deadline would contradict this statute’s core purpose of limiting the voting period, so as to prevent “cabal, intrigue, and fraud.”

Watson v. Republican National Committee

Extended mail-in voting was not directly at issue in the Watson case. This was because the plaintiffs had not challenged it.

Thus, while Justice Amy Coney Barrett’s opinion for the court recounted the anti-fraud reason for limiting the length of elections, all she actually decided was that the federal statute permitted Mississippi to count ballots mailed before Election Day, but received after Election Day.

Yet in reaching this conclusion, she emphasized that when a statute prescribes the time of election, it prescribes the time for choosing. This emphasis, and the authorities she relied on, strongly suggest that early voting is not permitted under a federal statute that prescribes a single “Election Day.” In other words, Election Day is the time for choosing and not a mere deadline.

Here are some examples of the court’s language:

“The defining element of an ‘election’ ... has always been the electorate’s choice of candidate ...

“By setting the day for the ‘election,’ these statutes set the day when the electorate must make its choice. ... The election-day statutes were enacted and amended across almost two centuries. At all relevant times, the word “election” was understood to mean ‘[t]he act of choosing a person to fill an office.’ ...

“When the federal statutes speak of ‘the election’ of a Senator or Representative, they plainly refer to the combined actions of voters and officials meant to make a final selection of an officeholder.”

Significantly, Justice Samuel Alito’s dissent also agreed that the time of election was the time of “the expression of the electorate’s choice.”

Justice Barrett pointed out that this conclusion squares with how the Constitution treats the voting by presidential electors. Under Article II, Section 1, Clause 3, the electors “vote by Ballot” on a single day and then “transmit” that ballot to Congress for counting.

The Court’s only suggestion that Election Day might be a mere deadline came in a single phrase: “the electorate’s choice is made when voting is complete.”

Conclusion

It is now far too late to launch a court challenge to the 2020 presidential election. However, that election offers a valuable lesson in how people in power use self-proclaimed “emergencies” (in 2020 it was COVID-19) to circumvent protections provided by law.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.