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Federalist Radio Hour
Does Election Day Mean Anything Anymore?
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On this episode of "The Federalist Radio Hour," Honest Elections Project Executive Director Jason Snead joins Federalist Senior Elections Correspondent Matt Kittle to break down the legal issues presented by counting mail-in ballots received days...
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Foreign.
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We are back with another edition of the Federalist Radio Hour. I'm Matt Kittle, senior elections Correspondent at the Federalist and your experience Sherpa on today's quest for knowledge. As always, you can email the show at radio the federalist.com follow us on x@fdrlst. Make sure to subscribe wherever you download your podcast and of course to the premium version of our website as well. Our guest today is Jason Sneed, executive Director of the Honest Elections Project. Here's the question Does Election Day actually mean Election Day? That is the key issue before the U.S. supreme Court. And the Court, of course, heard oral arguments in the case known as Watson v. Rnc, the legal dispute on the challenge to a Mississippi law allowing election officials to accept mail in ballots up to five business days after Election Day, so long as they are postmarked on or before the day of the contest. And as you can imagine, the arguments this week have been very interesting on this case. Jason, thank you so much for joining us on this edition of the Federalist Radio Hour.
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Well, it's great to be with you. Thanks for having me on the program.
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Absolutely. You covered the oral arguments. Give me your sense of what the court is really trying to get at here from or at least get some answers to in this case?
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Well, this case, as you very eloquently laid out, really comes down to a fairly straightforward question. Does election day mean election day and when do we actually consider a ballot to be cast? Is it when you fill out the piece of paper that is the ballot, or is it when it is actually received by an election official by somebody that is designated by the state to take possession of that ballot, to establish chain of custody, and then eventually to count or not count, if for some reason you violated the law, for instance, failed to comply with the voter ID standard, something like that, for a long time. In fact, for most of the nation's history, we have understood and we have gone to great pains to establish very clear rules that say that ballots must be in the possession of officials by the end of election day in order to be counted. And it's really only been in some limited circumstances throughout the nation's history, typically wartime, and then within the last couple of decades that states have begun to stray away from that and have established Mississippi style rules that allow ballots to be received and then to be counted after election day is over. And so what the court is really trying to get to the bott of is first of all, do the federal laws that have been established to set a uniform election day mean in fact the ballots have to be received by the end of that day, and then what does it mean to actually cast a ballot? And a lot of the argument today surrounded what the history and practice was throughout the nation's history, beginning really in about 1845 when Congress passed the first of these uniform election day statutes. It was an interesting argument and I'm sure we're going to get down into the nitty gritty of it, but I think it was definitely a fascinating two hour debate really about what, what election day actually means.
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I think that's a great place to start, really, the history of this, because that's what the court has to look at. How has this really been viewed by Congress? How has this been applied by elections officials? You, you, you note that this thing goes back what, 180. Tell us a little bit about the history where this began and now where it has become this extended, lengthy election period.
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Well, this was one of the interesting points that even some of the liberal justices were pointing out quite correctly, that the concept of elections have changed quite a bit from the beginning of the Republic until now. Of course, I don't think that the change is necessarily cut in the direction that they very clearly were trying to go in their lines of questioning. But if you were going to go back to 1789, for instance, voting in the US would look markedly different than it does today. And a lot of the things that we sort of take for granted are the result of systemic changes that have been enacted by Congress or by the states over the last couple of hundred years to bring some degree of security and predictability and uniformity to the process. So at the very beginning of the Republic, we actually elected, when we were choosing presidential electors, we had states that would hold elections at different times. And so there was a 34 day window across which states would be selecting, would be voting to select President of the United States. And then in 1845, Congress stepped in and established the first of two laws that set a uniform date for the election. And they did so because they wanted to bring consistency. They wanted to make sure that states were voting at the same time to avoid fraud or the perception of fraud. That was one of the over overarching reasons for passing that initial statute. And from really that point forward, the default norm has been that when we are talking about election day, we are talking about election day, and that ballots, in order to be counted, need to be in a state's physical possession by the end of that election day. And during the argument today, a lot was made about practices dating back to the Civil War, which is really when you saw what we would consider to be absentee voting begin to become an actual practice that was used in any kind of widespread scale. Because obviously you had soldiers that were deployed throughout the entire country. They were nowhere near where they were going to be voting. And it was important to make sure that union soldiers had access to the ballot. But what we saw from Paul Clement, who was arguing for the RNC and what we've seen in the briefing is that even then, states were going to great lengths to ensure that when a soldier voted, his ballot was taken into physical possession by an official that was designated by the state to receive that ballot. And then that was when it was considered to be cast. Not that soldiers were putting their ballots in the mail and then the mail was taking six or seven weeks to get back. And then you're still counting ballots that back throughout that entire period, and really that's been the norm throughout the majority of the nation's history that we've understood that elections are over on election day. It's really only been in the last couple of decades as states have made one policy choice after another to encourage people to vote by mail and then eventually to mandate that people vote by mail, that they decided to continue pushing the envelope of what is an acceptable practice and then push it into this late collection. And it's really only gone widespread since COVID when states like Mississippi changed their law to allow late ballots to come in and then decided to stick with those laws and make them permanent after Covid. So out of 250 years of national history, really only the last five or so has seen this kind of widespread sense that it is in fact okay to allow ballots to come in days or even weeks after the election is over.
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Well, can you imagine the chaos if you had from the Civil War battlefield, all kinds of ballots coming in, you know, as you mentioned, weeks and weeks and weeks? You know, I think we can imagine that because we have seen that over the last few years in, including in2024, which I think may be the most egregious example of that in California, where you have this, you know, absentee or mail in ballot count, basically extending the election period a month. Plus, not only do you not have the, the clear winner of a congressional race, you still have doubt about who, what party controls Congress. That is absolute bedlam. So how much do you think the court is going to take in some of these examples? I think of Nevada in 2022, Adam Laxalt, who, you know, was, was clearly leading in that Senate contest, and then all of a sudden, days later, the vote changes because they allow all kinds of votes to come in after election day.
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Well, I think this is going to be a point that most of the justices on the court are going to take seriously. I think that the three liberal justices, very much like most progressives in the voting space these days, pretty solidly discount the problem of fraud or public perception surrounding late ballots and elections flipping after election day and so forth. But the majority on the court has long understood that states have an obligation to deliver elections that are well run and that are secure and have understood that public perception of fraud and fraud itself are essentially one and the same. In fact, you heard an oral argument today, you heard that exact point raised. That perception essentially is reality. So I certainly think that they're going to look at some of these instances, some of these examples in recent memory where ballots were coming in and election results were flipping in the post election context, when voting was supposed to be over. And yet ballots are continuing to trickle in days or weeks late, oftentimes with a postmark, oftentimes without. That was also something that we heard the justices really wrestling with was the fact that not all of the states that have these late ballot laws even require that they have a postmark demonstrating that they were mailed before the election. And it is absolutely damaging to public confidence in the voting process. Not only if you are watching election results change potentially dramatically after the voting period is supposed to be over and all ballots are supposed to be received, but then also if they're counting ballots that don't even have any indication that they were voted before the election was over, that is a recipe for public skepticism. And so I do think that they're going to take that seriously. And even when Paul Clement was being pressed about one of the briefs that took some positions that were counter to the rnc, the point was made that even though this particular brief was arguing that in fact federal law does not and really can't be read to line up with the RNC's position, they were saying that the court, if there was going to be a tiebreaker was how he put it, that the tiebreaker would be that the court should consider what ruling is going to be the best defense against fraud and public concerns surrounding it. And here I think that there's really only one ruling, one outcome that does that. And that is to say that balloting is illegal, it violates federal law, and it should be ended in all 50 states then. And we should go back to the bright line standard, which again is the standard that most people have, have lived with and voted with throughout the majority of American history, that ballots must be received by the end of election day to be counted. Dog grooming Genius here. Most people see a busy dog salon, but I see operational excellence thanks to Genius. From global payments scheduling, personalized checkouts, instant absolutely genius. From game day crowds to every groomer in this shop, Genius keeps everything flowing seamlessly. Schnauzer is styled flawless execution, big league reliability for any business, that's genius.
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I want to get to the fraud question in just a moment, but I thought this was a very interesting point and extremely salient point that Justice Alito made during oral arguments today. By the way, a plug for Federalist Editor in Chief Molly Hemingway is she's got a great book coming out about Justice Alito coming up next month. So stay tuned. We will have more details on that around the corner. The Justice Alito said today we have lots of phrases that involve two words, the second of which is day, Labor Day, Memorial Day, George Washington's birthday, Independence Day, birthday and Election Day. They are all particular days. So if we start with that, I have nothing more to look at.
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Well, maybe these, maybe it's inevitable that
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some sort of line drawing decisions like
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these have to be made. Unless the rule is anything goes, you know, states can do anything they want in this area, we don't have a whole lot to go on here.
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We have the phrase Election Day and we have history. If we look to just at, at the phrase Election Day, what would we take from that?
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I think you've been saying, and we're moving in this direction.
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We don't have election day anymore. We have election month or we have election months. I mean, the early voting can start
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a month before the election.
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The ballots can be received a month after the election. Do you think Justice Alito's mind is set on this matter? And what do you think about the points he raises about these particular day days that really are just a day, not days and days and days.
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Well, I suppose that if there's a poly market bet out there about which way Justice Alito is going to come down in this case, I'm not sure that I would be betting that he's going to be on the side of Mississippi based on statements and questions like that that he really peppered both the Mississippi Solicitor General with and then the US Solicitor General and the rnc. You know, I think that his, his, his statement is right on. You know, we have this very common sense understanding when we're talking about a particular day that we mean a particular day. And you know, we can, for instance, I know lots of people that love birthdays so much that they want to celebrate them for longer, but even then, you know, they'll say colloquially, right, you know, oh well, it's my birth month. You know, it's my birth week, right. And they're not trying to argue that your birthday is actually a seven day period that begins on your birthday and stretches for seven days afterwards. Right? Even the 12 days of Christmas, Right. We aren't literally saying that Christmas day itself is 12 days long. It is one finite period of time. And I think that this argument that election day really doesn't mean election day falls into a very common trap for left wing voting policies. They're just over complicating things. So much so that they're using facts and arguments to obscure very basic truth. And that is that we have this thing called election day. We know that elections are supposed to be over on election day and when we are continuing to bring in ballots, not just count the ballots that we've already received, but when we are continuing to bring in ballots and results are continuing to shift in meaningful ways, dramatic ways and again, not just the ballots that we're counting that were received before the election was over. And so vote totals for particular candidates are changing, but the overall number of votes in the election is changing as well and continuing to go up. Most people would say the election isn't over. And I think that when we have reached that point where our state laws are encouraging people to hold on to their ballots late, to get them in the mail late, believing they will be counted, and then they continue to come in late, we really have extended voting beyond the day that is set by federal law called Election Day. That's a very common sense, very, very, very easy to understand explanation for what this debate really is. And you can try to obscure that fact with legal arguments and with policy arguments and with arguments that people need extended periods to get their ballots, and none of which are true or accurate. But you're really just trying to distract from a very common sense understanding that most people have. That election is over when the ballots stop coming in and when you stop counting those new ballots. And that's really what we're, what we're arguing about in this case.
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But, Jason, that's just, that's just Jim Crow 2.0 talk you're, you're offering. That's what we hear over and over again from Democrats in the left in another important election law issue, which we'll get into in just a bit. But this is, is particular to you. You have been studying this whole issue for a very long time. Before you got to the Honest Elections Project, you were with the Heritage foundation working in the, the former Attorney General Ed Meese office. And you did a good deal of work, I know, with the Heritage database that tracked fraud in elections. And I want to ask you this straightforward. Do you think these extended election days have led to fraudulent votes? And what do you think the ultimate impact is?
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Well, I think that the impact from a fraud and from a security perspective is real. And I think that it unquestionably has led to fraudulent or illegal ballots being counted. There's really a couple of different ways that this can play out. One is the hypothetical that if you wake up the day after the election and you see that your, your, your preferred candidate is losing and you realize, shoot, I forgot to get my ballot in the mail. You might just be tempted to slip it into the mail, hoping that it's not going to get postmarked and it's going to be received within the window and then it's going to be counted, because what evidence at that point would there be that you did anything illegal, even if it is postmarked after the election, especially with this new U.S. postal Service rule that says that postma is likely to be delayed, meaning that it's not going to be postmarked the day that it gets into their possession, but potentially one or two days late. There's still no evidence that you tried to commit any kind of fraud there, right? So why wouldn't you? Boat traffickers might be inclined to do the same thing to go around door to door to the folks they know have mail ballots, but they can see with their absentee ballot tracking that they didn't turn them in. So they go around and they start collecting those ballots. There's definitely that possibility. And if you're in a state, state, which these are mostly blue states that have these late ballot laws and you don't even have a postmark rule, there's absolutely no disincentive to try that. The other way that this could go down, of course, is that courts could decide to read out any of these very basic safeguards. You know, take again the question of postmarking, right now that you have this, this, this rule that has effectively delayed when postmarks are going to be put on ballots. You can easily see somebody like Marco Lias, the leading Democratic lawyer, go into court and argue, you know, look, the state legislature said that it needed to be postmarked by election day. But now we know a ballot can be put in the mail on election day and it might be postmarked a day or two late. So, you know, you, judge, need to rewrite the law and allow ballots that come in without postmarks or with late postmarks to be counted because we want every vote to count. So in that case, you have, you know, potentially illegal ballots being, being counted. And, you know, we saw, we heard several of the, you know, hypotheticals that the justices posed the way that these ballots can potentially swing the outcome, right, they can be outcome determinative and the loss of public confidence that ensues, particularly if you are operating under a state law that says to count, you know, what otherwise might be an illegal vote. So there's a real possibility here of fraudulent ballots getting into the system. And I'm almost certain that illegal votes have been counted in these races. One of the things that really jumped out at me when I was doing this work at Heritage back in the day on fraud was that anytime you were talking about fraud that affected more than one or two votes, it was almost always in the mail voting context. That's where the fraud happens because voting is taking place away from election offices, away from election officials and poll observers, and it is extraordinarily difficult to prevent fraud in those contexts. So that's where if you're going to do something like a widespread fraud scandal, that's where it's going to be. And that's another reason why you need to have these very basic, very common sense rules like ballots in by Election Day. That's a bright line that avoids any possibility of these kinds of fraudulent ballots being slipped in after the election is over, hoping to swing outcomes. And I think that there's certainly some of the argument that we heard today. I think it shows that the justices are thinking about some of those concerns as well. 12.7% of US credit card balances Are How Late the Watchdog on Wall street podcast with Chris Markowski Every day, Chris helps unpack the connection between politics and the economy and how it affects your wallet. Americans credit card balances are experiencing late fees to the highest level since 2011. More and more people are falling behind as people are over 90 days late. Not a good sign. Whether it's happening in D.C. or down on Wall street, it's affecting you financially. Be informed. Check out the Watchdog on Wall street podcast with Chris Markowski on Apple sp. Wherever you get your podcast, I've got
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Dan Morgan here on the pod.
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Say hi, Dan.
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Hey, how's it going today?
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It's going good, man.
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Tell us who you are and what you do. I'm Dan Morgan. I'm an attorney and a managing partner at Morgan and Morgan, which is America's largest injury law firm. That's pretty awesome. I think I saw a billboard of
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yours recently that said 20 billion one.
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20 billion is an insane number. Yeah, 20 billion recovered. It's actually, I think somewhere north, probably closer to 22, 23 after this year. And each year we get bigger and badder and our army grows. So the number will hopefully keep getting bigger and bigger as time goes on. Awesome. So how does someone get in contact
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with Morgan and Morgan? What what would I do if I got into an accident?
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Probably the easiest way is dialing pound law. That's £529 from your cell phone. We are always open. Our call center is always waiting to take your call. 247365 wow.
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Dan Morgan from Morgan Morgan, America's large injury law firm.
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Thanks for coming by the show. Thanks for having me. Visit forthepeople.com for an office near you.
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Our guest today is Jason Sneed, executive director of the Honest Elections Project. Now, you said two things that I find extremely interesting. Curious even you said that in, in some cases, I guess, judges try to legislate from the bench. I, I can't believe that that's not in the Constitution. That seems like a separation of power issue, Jason. Of course I say that all tongue in chee. Have we seen just a long line of activist judges, particularly on election law, over the last several years in this country? The other question is, if you can't trust the U.S. postal Service, well, who can you trust? Jason,
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those are both excellent points. Yes, we certainly have a perfect postal service and we certainly have never heard of an activist judge. Those would be the day. I'll respond to both of those points and I guess I'll take them in order. You know, first, we have seen time and time again activist judges that will enjoin common sense election laws essentially the moment that they are passed. Right. There are particular judges on the left. And what you'll see is when there are lawsuits filed, as they inevitably are against state laws, there will be a degree of what we call form shopping, that is they'll bring their challenges in front of those particular judges. Whether we're talking about group groups like the ACLU or whether we're talking about the Democratic Party itself or any of the other folks in that orbit, they will go in front of particular judges pretty confident that they will get a district court ruling in their favor if they're going to federal court. And that's a real problem. Right? And that's especially a problem in blue states that aren't interested particularly in defending their existing election integrity laws. So back in 2020, one of the things that we saw saw was hundreds of lawsuits being filed using Covid as an excuse to justify an attempt to rewrite all of these state laws through the judiciary. Right? When a state legislature refused to buy what the left was selling in terms of leveling down on election security, they just ran to a court and said, aha, now you have to do what we want. Because actually Covid is so bad that the Constitution requires states to get rid of all of their election integrity laws. And a lot judges went along with that. And in blue states where you had, you know, left wing AGs, left wing secretaries of state, they would sometimes even just enter into collusive consent agreements with the Democratic Party, with its lawyers, whatever, and they would just agree to rewrite state laws right then and there. So this is a real, this is a real problem. And it can lead to situations where, if you look at what your law is on paper, you think you're actually pretty good. But then if you look at what the law actually is in practice, practice because of court rulings and regulations and things like that, it's a vastly different, vastly different dynamic. And then on the other point about the Postal Service, you know, this is something that every state has to grapple with because every state allows absentee voting to some degree. The question is, who is going to be voting by mail? And for those states that say everybody should be voting by mail, they really have to come to terms with the fact that they are outsourcing a critical piece of the democratic process, the hand handling of ballots, to an agency that they do not control, that they cannot regulate, and that thinks that if they lose only 5% of the mail pieces in their possession on any given day, that's actually a really good day. Right. And so this is a real problem. And states that are pushing mail voting never want to talk about the flaws with that system. You know, they don't want to talk, certainly not about the fraud concerns surrounding mail voting, but then they don't want to talk about the real risk, risk that ballots are going to get lost in the Postal Service's possession. They'll never get received or even with. And this is the dirty secret of these late ballot laws. Even with a ballot receipt deadline that pushes the receipt deadline out by 5 days, 10 days, 21 days, in the case of Washington state, a ballot still might get so heavily delayed that it doesn't count. So this is a real problem also. And it's one more reason I don't think the Supreme Court's going to rule on these particular policy grounds. But it's one more reason why states should be getting rid of these late ballot deadlines and encouraging people, if they are going to vote by mail, to vote early. And that's also why I think we've seen so many states do exactly that. Four within the last year have got rid of their late ballot deadlines. I think there's just a degree of common sense that is finally beginning to seep into folks thinking on some of these late ballot deadlines.
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I think anybody who is a Seinfeld fan and has seen the episode where Jerry tries to help mailman Newman finish up his route so he can, Newman can get his sought after Hawaiian route. It was a, a failure because Jerry had had, I think, gotten the mail to something like 60% of the people on Newman's route. And they were suspicious because that was too high of a, a mark to hit for the average mail carrier. In, in all seriousness, I mean that is a, a huge question. It's, it's been a huge question for time. The security of our mail system. So the question is if we have questions about the security of our U. S. Mail system, that's a real issue for the security of our election system. And those ballots that go in now as to the, the judges, the form shopping, right, what say the, the three liberal justices on the court, the Katanji Brown Jacksons, the, the k. So Sotomayors, what kind of arguments are they making or what kind of questions suggest to you that they might not be in the, the line of thinking that says election day should be just election day?
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Well, I think if you, if you listen to the way that particularly justices Sotomayor and Jackson were to a great degree carrying water for Mississippi, I think it's very clear that they were in favor of a ruling for Mississippi and really for these late ballot laws, that's really what they're trying to preserve is the widespread mail voting and the ability of these left wing states to extend these ballot deadlines. And so they were taking the US Solicitor general to task and they were taking Paul Clement to task on a number of different issues, everything down to the history and the practices which very clearly show that we have long understood ballots to need to be received by election day. They were really trying to undermine that very basic position. And like I said, carrying a lot of water for Mississippi, defending some of these terrible practices. And when other justices were raising hypotheticals about, you know, just who could actually count as an official to receive this, you know, could my neighbor count as somebody that we give this to, they were very defensive even of that. Right. So they were, they were, they were basically trying to say that unless Congress has very specifically passed a law saying ballots, you know, put in the mail must be received by the close of polls on the election day, then there's nothing that is illegal about what states are doing. And Justice Jackson even at the end raised a, a bill that is currently being debated in Congress called the mega act make elections great. Again, trying to imply that, suggested that Congress didn't think that it had already made this illegal, which I think is a pretty absurd allocation. Yes, it is.
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So I think, I think Congressman Brian Style who, who brought this forward on the, on the House administration Committee would think that's an absurd argument because, because the mega act does exactly what the RNC is talking about. It confines election day to election day. So how does she make that square?
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Well, that combined with the fact that when Republican members of the House have been discussing election integrity laws like the MEGA act, they've been very clear that it is already illegal. This is a reaffirmation, this is a recodification making explicit what has long been understood, understood. It's, you know, it's really quite, I think it's really quite telling. But we see this in a lot of other contexts too. The basic argument that undermines a lot of what the left tries to do when it comes to changing voting policies, whether it's going into a state like Georgia in 2020 and saying, you know what, you guys need drop boxes and you need them everywhere, on every street corner. Do it right now. Whether it's going into Texas again, excuse me, and saying, you know what you should do, 24 hour drive through voting or now with this late ballot law that Catangi Brown Jackson is saying, there's no explicit text in federal law that says you can't receive ballots after election day. They're always saying the law says that elections shall be run according to X, but they don't say Y and therefore you can do Y. And that's a pretty absurd way to read the law, right? If the, the law says a polling place in Texas should be open from 7am to 7pm and I don't know if those are the numbers right off the top of my head, but for the point of argument, let's assume it is to then say, well, it doesn't say that it can't be open outside of those hours. It just says they're going to be open during those hours. So therefore that means you could do 24 hour voting. That's the line of argument that we're really kind of picking up on there. And it doesn't fly. It doesn't pass the smell test. And to argue that Congress proposing a piece of legislation somehow implies that, that it isn't already illegal is a pretty absurd argument. Especially when the authors of that bill have made clear they think it is. So, you know, I think there's nothing really there. And I think to a certain extent they are trying to carry water from Mississippi and are grasping at straws if they're reaching for bills in Congress right now as proof that Congress has, hasn't made this illegal. I've got Dan Morgan here on the pod. Say hi, Dan.
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Hey, how's it going today?
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It's going good, man. Tell us who you are and what you do.
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I'm Dan Morgan. I'm an attorney and a managing partner at Morgan and Morgan, which is America's largest injury law firm. That's pretty awesome. I think I saw a billboard of
- [37:18]
B
yours recently that said 20 billion one.
- [37:22]
D
20 billion is an insane, insane number. Yeah, 20 billion recovered. It's actually, I think somewhere north, probably closer to 22, 23 after this year. And each year we get bigger and better and our army grows. So the number will hopefully keep getting bigger and bigger as time goes on. Awesome. So how does someone get in contact with Morgan and Morgan? What would I do if I got into an accident? Probably the easiest way is dialing pound law. That's £529 from your cell phone. We are always open. Our call center is always waiting to take your call. 24, 7 7, 365.
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B
Wow.
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Dan Morgan from Morgan Morgan, America's large injury law firm. Thanks for coming by the show. Thanks for having me. Visit forthepeople.com for an office near you.
- [37:59]
C
Well, again, the argument from the left for a long time has been and I think the argument in part from the representatives of Mississippi election offices in this case is that if you do not, not allow this expanded voting period, just like if you do X, you do. There are many, many different examples. One we're going to get to in just a moment. If you put in a law that requires the voter to show a photo identification at the polls, you are disenfranchising voters. You are suppressing, oppressing voters. And that is a violation of civil rights. They have used that and those terms without exhaustion and it's been exhausting, but without exhaustion for, for a long time. This is the, the latest or just another under this huge umbrella how. But most people just don't see it that way. I mean, you have 80% support for integrity legislation. How do they continue to make these arguments and how do courts allow them to get away with it?
- [39:26]
B
Well, I think that you actually saw in the oral argument today, Justice, I believe it was Justice Kavanaugh who asked the question of Mississippi. You know, would a state setting an election day deadline be guilty of voter suppression? Essentially, would they be disenfranchising anybody? And Mississippi, Mississippi said absolutely not. This is not disenfranchisement. Reasonable deadlines, not disenfranchised voters, though. So they're defending Mississippi's law, but they're not willing to, I think, be held out as a case study for the left in why any state that does require election day deadlines is somehow guilty of Jim Crow 2.0. So I will give them that for certain. But the reality is that when you actually look at the data right, about these late ballot deadlines, which are always held out as a necessary policy choice that states must make in order to make sure that as they call it, every vote counts. Right. When you actually look at states that extend their ballot deadlines, they often wind up disenfranchising to use their language, essentially the same number of people. Massachusetts had an election day deadline up through the 2016 presidential election and then it changed to a three day grace period. And if you look at the, the ballots that were rejected for lateness under the old rule in 2016 versus the new one in 2024, they're rejecting almost exactly the same number of ballots, the number of ballots in Nevada. When Nevada moved from an election day deadline to, to a grace period, they're rejecting more ballots. Right. So there are policy choices that states are making to encourage people to vote by mail ballot deadlines encouraging people to hold on to their ballots longer on the belief that they will be counted. They're essentially saying it's okay to put it in the mail late. We'll, we'll still count it, but that's absolutely not the case. That's not a guarantee. Conversely, if you look at states that have rolled these deadlines back, you know, Ohio for instance, moved from a 10 day grace period to a 4 day grace period across that same time time period and they rejected half as many ballots for lateness in 2024 as they did in, in 2016. So there's, there's no truth. Once again, just like with voter ID and you know, voter list maintenance and everything else, the left is always saying this is Jim Crow voter suppression. There is no data to sustain this, this claim that these ballot deadlines are either A essential or B, they actually do ensure that every vote counts. Really. They just set voters up for failure and they, they know postal delay one bad postmark away from having their, their vote rejected and being disenfranchised.
- [42:22]
C
Democrats have been doing it forever, liberals in, in particular, but you know, screaming racist or racism every time they don't agree with policy. Just because you want to have common sense sense markers on when election, the voting process begins and ends, it doesn't mean that it is racist. It doesn't certainly suggest that that's disenfranchising. But what is disenfranchising, quite frankly, Jason, is what is not talked about certainly by Democrats and unfortunately it's not talked about enough by those on the, the right. But what is disenfranchising is when you allow someone to Cast a fraudulent ballot or you open up the opportunity for that. And so I, I, I'm curious how this issue in Watson relates to what is going on in the Senate when it comes to the Save America Act. And of course, the, the, you know, the, the idea of basic voter verification and the notion that we do have non citizens and a lot of them, quite frankly, on our voter rolls and non citizens, whether the left likes to acknowledge it or not, have voted illegally in our elections.
- [44:00]
B
Well, that's right. And I think that this gets back to the, the fundamental divide between the far left and the rest of whether we should actually be securing and protecting elections. And you know, many of the people on the left that are, and this is one of the big ironies here, many of the people on the left that, that are the loudest about how much they care about democracy, that will wrap themselves in the flag of democracy at every opportunity and, and will argue that if you aren't, you know, electing their, their politicians, your, your anti democracy right are the ones who also say that however much they cherish democracy, it must not be safeguarded, it must not be secured. We must not ask for voter id. We must not ask for basic verifications about citizenship. We must not go through and clean up the voter rolls. We must not set, as it relates to this case, very common sense, routine deadlines like ballots in by election day. So that really sort of puts the line to the whole claim that they really care about democracy. Now I'm not necessarily trying to, that these folks want to see democracy ended or anything like that, but they're very clearly playing partisan politics with the democratic process. And I think that this really puts the lie to that and to your point about a lot of the rhetoric that we hear coming from the left not wanting to have a debate on the policy of voter ID or have a debate on the policy about proof of citizenship or on the policy about late ballot deadlines or what the law says. They just want to call it voter suppression and kind of pound to the table. It's because they know they're out of step. They know they are not in line with where the average American is. And that's why at the beginning of this question I said it's really about the far left versus the rest of us because voter ID always polls 85, 90% public support. Proof of citizenship is the same thing. We did a poll as it relates to this Supreme Court case and we found 80%, 83% public support for the idea that all ballots should be received by Election Day. And that's overwhelming bipartisan support. That's overwhelming support from Democrats, from independents, from Republicans. It really doesn't matter what demographic group or what party you are in. You just think the ballot should be in by election day because it's election Day. So, you know, this really is a, yet another front in this, in this debate where the left is trying to argue for policies that level down on security that are not supported by the average everyday American. And really it's all just about rigging the rules of the system to the left's advantage. And they are desperate not to have a debate about the actual impact of their policies. They are desperate not to have a debate on the substance of their policies. They just want to call it names and smear anybody that raises questions and hope that they can make enough noise to, to avoid the debate. It's, it's sort of like the old quip about lawyers. You know, when you have the law on your side, you pound the law. When you have the facts on your side, pound the facts. And when you have neither, you pound the table. And that's really where the left is these days. They just pound the table. They make a lot of noise because they know that they don't have the public, they don't have the law, they don't have the facts on their side.
- [47:25]
C
But the Democratic Party, its own members, support voter verification and these, these election integrity policies by A, of 60 to 70%. So they're not only going against, you know, the concert, what they call the election deniers, I like to define these folks as election integrity deniers. They're going up against the, the vast majority of, of their own members. And so that has to tell you something about what is wrong in that line of thinking these days. At least it does to me. Final question, question for you. Given what you have seen today, and this has obviously been a major issue for the last several years in this country, where do you think this court is headed?
- [48:14]
B
Well, I'm certainly going to, to, to be the optimist today and, and, and hope for a good ruling before the midterm elections that will put an end to, to, to late ballots nationwide once and for all. I think if you, if you, if you listen to the arguments where some of the justices were trying to decide, if we rule for Mississippi, if we say these laws are valid, where's the end? Where's the limiting principle? When do states need to cut off their receipt of these ballots? There was no limit, really. I mean, it basically looks like they could be receiving ballots up until the next Congress is seated, maybe even beyond. You never know. Right. So there's really no limiting principle that Mrs. Mississippi was able to establish here. They weren't able to address any of the fraud concerns really, really meaningfully. You know, they. Other than to say that Mississippi does it better than most of the other states that had these late ballot laws and takes election fraud a little bit more seriously than some of the others do. But that's not really a good defense because, of course, any ruling that we get here today is going to be either an endorsement or an end to late ballot laws nationwide. And, you know, when you're in the, in the company of states like Californ, it's really hard to argue that Mississippi doing it better than California means that California can keep doing it very poorly. Right. The blue states always love to level down on this. It's sort of like Minnesota arguing that they don't need voter ID because they have this fantastic thing called vouching. And anybody can just walk into a polling place with eight friends, vouch for their identity, sign an affidavit, and then they can all vote because nobody in the state of Minnesota has ever committed fraud of any kind before. Right. And so I think that when you, when you look at that and then you combine it with the long voting history and the traditions in this country of how we have actually conducted elections and what the understanding has been about the idea of ballots coming in after election day and those not being considered to be countable up until very recently. I think there's a good case to make that the court will come down to the right side of this issue issue, and I certainly hope that they do. And one point that we haven't addressed, but is a very important one as it relates to the midterms, is this question of Purcell, which really came up at the very end of oral argument, I assume Justice Kavanaugh asked about it. And, you know, we heard a very quick but precisely on point argument from Paul Clement that if we get a ruling from the court in sort of the normal course around the midpoint this year, that is plenty of time for the states that have these laws to adapt to the new ruling and to begin educating the public and to change their forms and to change the materials on their ballots and to come into compliance. Now, I would argue that the responsible thing to do would be for those state legislatures to repeal those laws today so they have even more time, but that's not going to obviously happen. So election officials in these state legislators with these late laws, they need to be putting in place an action plan right now. Of course, my fear is that they'll, they'll wait until they get the ruling, then they will throw up their hands and they'll, they'll, they'll say it's too late to do anything. This is going to be, you know, chaotic. And then they will try to score points off of the chaos that they allowed to happen. But, but nevertheless, I'm, I'm confident that we'll get a good ruling out of the court and that if it's applied in the midterms, it need not lead to chaos, but it will lead to a major gain for election integrity nationwide and it'll bring some sanity back to the voting process before the midterm elections,
- [52:10]
C
will bring confidence back as well, which has been absolutely battered because of policies, because of laws like what we've seen in Mississippi and California and Nevada. And you can go down the list. You've been listening to another edition of the Federalist Radio Hour. I'm Matt Kittle, senior elections correspondent at the Federalist. Our guest today, Jason Sneed, executive director of the Honest Elections Project. Again, you've been listening to another edition of the Federalist Radio Hour. I'm Matt Kittle, senior elections correspondent at the Federalist. We'll be back soon with more. Until then, stay lovers of freedom and anxious for the fray.
- [53:10]
A
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- [53:41]
B
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A
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