Votes: cast vs. counted

On January 14, SCOTUS ruled by 5-4 that candidates for public office by that very fact have standing to challenge state election rules regarding the counting of mail-in ballots received after election day.

Writing for the majority, Chief Injustice John Roberts offered a comparison to a foot race in which the length was changed from 100m to 105m while the race was going on, describing that as clearly unfair. But despite being (very) superficially clever, instead of supporting his argument the image reveals its hidden and fundamental weakness. It’s like, in an old saying, a house built on a foundation of stubble and straw.

That's because no one to my knowledge is talking about changing the length of the election campaign in the middle of it. No one, that is, is suggesting changing the date of an election during the campaign, which is what would be the equivalent of Roberts’ example.

What’s involved, rather, is counting mail-in ballots arriving after election day. That is, after the race is over. Every entrant knew the rules going in, knew the dates, knew what they had to do in what time frame, a time frame that ended on election day. Whatever the number of days allowed for mail-in ballots to arrive after that, they must have been posted, that is, cast, by then.

Which reveals the underlying failure of Roberts’ analogy: He is equating when a vote is counted with when it was cast. Which is both nonsense on its face and contrary to previous decisions, which have held that when that mail-in ballot is put in the mail, it is as that point cast.

So unless he is claiming both that all mail-in ballots must be received before election day and (to be consistent) that all counting of votes must stop at midnight (otherwise they would be counted after election day and so invalid), his argument is -

- well, I started to say vapor, but it does have substance in its impact: It empowers those with the contacts and cash needed to pursue suits intended to push the courts to embrace election rules tailored to a particular candidate's own selfish advantage. More broadly, it could result in tangling election rules to the point where not only are tens of millions of voters disenfranchised but, ultimately, no election outcome can be trusted, an idea decidedly not beyond the reactionaries' hopes.

But since Roberts hasn’t shown a lot of interest in fair elections - consider his gradual dismantling of the Voting Rights Act - I doubt he cares.

Footnote: A reply referred to Roberts’ “ridiculous” analogy in his confirmation hearings about “calling and balls and strikes,” saying the Court was instead narrowing the strike zone.

I replied that I think my favorite dumb Roberts’ aphorism was when he justified smacking down affirmative action by saying (as best as I can quote from memory) “The best way to stop discriminating by race is to stop discriminating by race,” which I at the time likened to saying “The best way to get from point A to Point B is to pretend you’re already there.”

I added that as for “balls and strikes,” that wasn’t just ridiculous, it was a flaming lie. But I did enjoy their use of the narrowed strike zone image.