In October, the Supreme Court heard oral argument in Bost v. Illinois State Board of Elections. This case considered the narrow question of whether a congressional candidate had standing to challenge the state's policy that counts ballots received after election day. At the time, I observed that the Court was suffering from PTSD after the 2020 election. The Justices were seriously concerned about litigation after election day that could flip the result. The Court's decision in January 2026 reflected these concerns. The Justices allowed the pre-election challenge to go forward in large part to avoid chaotic eleventh-hour litigation that could change the outcome of a race. The three opinions in that case were not very persuasive but it seemed clear to me that the Justices were concerned about the practical consequences of a contrary ruling.
Paul Clement argued Bost. And Clement would come back to the podium today for round two in Watson v. RNC. This case focused on the merits questions: can Mississippi count ballots that arrive after election day?
It was an unusual oral argument. A deep red state was defending a permissive voting law that was opposed by the RNC. Moreover, the state was represented by Solicitor General Scott Stewart, a former Justice Thomas clerk, who argued Dobbs. I don't think Stewart ever expected to be on the receiving end of sharp questions from Justices Thomas and Alito, while Justice Sotomayor tried to bail him out.
During a colloquy with Justice Barrett, Sotomayor gave Stewart a pep talk: "You're getting caught up, counsel, again. Could you go back to the question? Justice Barrett is not arguing with you." Justice Alito even seemed to counsel Stewart against agreeing with Justice Sotomayor too much: "Justice Sotomayor is asking you what I think she intends to be a friendly question, but maybe you want to think about whether you want to go that far." By contrast, Paul Clement was right at home. My favorite line of the day from Clement was, "Well, not surprisingly, Justice Thomas, you are exactly right." Always a good answer.
During a somewhat recent oral argument, a conservative litigant was having trouble, and fought one of Justice Thomas's hypotheticals. I told my student that when you are on the right, the only acceptable answer that you can give to Justice Thomas is "Yes, your honor, that is correct." On the left, Solicitor General Prelogar made an art form of answering "yes" to Justice Sotomayor's string of leading questions.
Back to Watson. Like in Bost, the Justices are still suffering PTSD from the 2020 election. They are profoundly concerned that late-arriving ballots could "flip" an election and the loser would lose confidence in that race. Even though the Justices denied cert on all of Trump's petitions from 2020, they likely saw the potential for bedlam. They might worry this issue could recur in a very, very close race.
Indeed, Bush v. Gore came up several times. At one point, Justice Sotomayor said if late-arriving military ballots were not counted in 2000, "maybe we should have another president now because." Clement replied, "So, with all due respect, that is the reddest of red herrings because what happened in the 2000 election." Tell us how you really feel, Justice Sotomayor! Well to be precise, a President Al Gore would have been term limited many years ago, but I suppose as a counterfactual, a term of President Gore may have affected who won subsequent elections. In all likelihood, Justice Souter would have stepped down in June 2001, likely giving Judge Sotomayor an earlier promotion.
My initial take on Watson was that the Justices would reverse the Fifth Circuit, but I think it likely that the Justices affirm, at least in part. Justice Barrett was concerned about the issue of whether a ballot could be "recalled" by USPS or FedEx. In other words, a vote could be cast by the deadline, but then "uncast," thus changing the bottom line vote. Barrett asked if only that part of the law could be struck down. I'm not sure what gets a majority here.
Here are some of the highlights:
JUSTICE ALITO: Do you think it's legitimate for us to take into account Congress's desire, Congress's passage of the Election Day statutes for the purpose of combatting fraud or the appearance of fraud and will and some of the briefs have argued that confidence in election outcomes can be seriously undermined if the apparent outcome of the election at --on the day after the polls close is radically flipped by the acceptance later of a big stash of --of ballots that flip the election or --yeah.
John Eastman could not be reached for comment.
Justice Gorsuch again asked about mail-in votes swinging an election:
JUSTICE GORSUCH: Well, in my hypothetical, which, you know, you say is unlikely to swing an election and all of that on recall, but as soon --you know, if --if history teaches anything, scant or not scant, it's that as soon as something's allowed, it will happen eventually, right? And --you know, so --so somebody -my hypothetical happens and everybody recalls their ballots. I'm just not sure what recourse the state would have against people who violated its anti-recall law.
Justice Kavanaugh quoted Professor Rick Pildes who wrote about how late-arriving ballots could "destabilize" an election:
JUSTICE KAVANAUGH: And then picking up on Justice Alito's questions, Professor Pildes and others have said that late-arriving ballots open up a risk of what might destabilize the election results. "If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode. The longer after Election Day any significant changes in vote totals take place, the greater the risk that the losing side will cry that the election has been stolen."
Pildes responded that "I didn't take any position in these writings, nor have I elsewhere, about whether the federal election-day statute pre-empts state laws that permit post-election day receipt of absentee ballots, as long as they have been postmarked by election day." Rather, his analysis was based on "policy considerations."
Kavanaugh returned to the theme of appearance of fraud and confidence in elections:
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