Alito Made ‘History and Tradition’ His Signature Weapon. Too Bad He Doesn’t Seem To Know Any History.

from the maybe-he-should-stop-making-up-history dept

Call me crazy, but I tend to think when Supreme Court Justices make a big sweeping statement in one case, they should actually follow it through with other cases. You may recall, for example, that in the Dobbs case, where the right to an abortion was overturned, Justice Samuel Alito took the ‘history and tradition’ test and made it the centerpiece of modern conservative jurisprudence — using it to wipe out a 50-year-old precedent. Specifically, his reason for overturning Roe v. Wade was that he, a very weak amateur historian, could find no support for such a right in the history at the time the 14th Amendment was passed.

That very bad amateur historian shtick was on display again this week in the (otherwise good) decision in Watson v. the Republican National Committee, regarding whether or not the federal government could invalidate mail-in ballots received after election day. The majority, written by Justice Amy Coney Barrett, and joined by Chief Justice Roberts, along with Justices Sotomayor, Kagan, and Jackson, pointed out that (duh!) while the federal government sets the date of the presidential election, the states get to determine how those elections are run, including how the ballots are counted, including absentee ballots.

Barrett goes through the history of how absentee and “mail-in” ballots have been used since the Civil War, and for over a century many states have allowed them to be counted, so long as they were post-marked by election day. And democracy has survived without any indication of any problem with those mail-in ballots arriving after election day.

But, to Justice Alito, this is the end of democracy. In a typically overwrought dissent, he claims that this move (which again, many states started doing over a century ago), upsets the entire concept of an election.

The acceptance of these late-arriving ballots effectively postpones the date on which the electorate’s choice is made, and federal law precludes that postponement.

But as Barrett notes in the majority opinion, federal law sets the date of the election, not the date of the vote counting, or the date results get announced. Those are different things, and Alito pretending they’re the same is bizarre for someone who seems to think history should be his guide in legal issues. The majority points out:

The Constitution requires the “Day on which [the electors] shall give their Votes” to be “the same throughout the United States.” Art. II, §1, cl. 4. But it says nothing about the day for receipt, and, of course, 18th-century modes of transmission did not offer same-day delivery. The Constitution therefore envisions a system in which receipt is necessarily divorced from voting, and it sets the crucial, uniform day as the day of voting, leaving receipt to happen down the line. The federal election-day statutes follow the same pattern: They set when the people “shall give their Votes,” ibid., but leave open when those votes must be received.

And here, Alito’s complete ignorance of the history of American elections shines through. All we need to do is go back to the very first presidential election of George Washington, in which election day was set as February 4th, 1789, but Congress waited until April 6th of that year to fully gather and actually count and certify those votes — over a month past the originally planned March 4 inauguration date. The votes were all technically “submitted” — you could loosely say “mailed in” by election day — but it took two months to actually count them (and then over a week for anyone to tell George Washington he’d been elected).

So, I’m sorry, but Alito can spare me with the idea that counting ballots that arrive after election day somehow “postpones the day on which the electorate’s choice is made.” That’s just utter bullshit and wholly inconsistent with the history of this country and the way elections work. The actual election day can be a single day, but the votes can be counted way later, and the results announced even later. Saying that it violates the historical concept of “election day” to allow mail-in ballots that are post-marked by election day makes zero sense at all.

And it’s not like the Washington situation was a one-off of a young country trying to sort out its presidential election system. Four elections later, in the infamous 1800 presidential battle between Thomas Jefferson and Aaron Burr, the US had to wait until months later when the matter went to the House to resolve (perhaps Alito should rewatch the musical Hamilton, which dramatizes this moment).

Or the elections of John Quincy Adams, which was also sent to the House to decide long after election day. Or the infamous Hayes-Tilden fight in 1876, where many of the votes were disputed and it took a specific (and possibly corrupt) “Electoral Commission” to sort things out and give the election to Hayes just days before the inauguration was set to take place.

No matter how you look at it: the US has a long “history and tradition” of voting on election day, and then (sometimes) taking a great long while to sort out who actually won, including waiting to count all the ballots. Mail-in ballots that are post-marked by election day and counted later are perfectly within that tradition, no matter what Alito has to say.

Alito’s entire jurisprudential brand is built on the idea that history and tradition should constrain what courts can do. He made that the centerpiece of Dobbs. But when that same history turns around and bites him — when it turns out the United States has a long, consistent tradition of counting ballots well after election day — suddenly history doesn’t matter anymore. What matters, apparently, is whether the outcome suits the narrative. That’s Alito retrofitting a legal standard to reach an outcome he desires. It should be seen as an embarrassment for a Supreme Court Justice to do so, but as we’ve all learned, Alito has zero shame in cooking up pretenses to reach his desired outcome.

Filed Under: absentee ballots, amy coney barrett, counting ballots, election day, history, missisippi, samuel alito