Transcription
Even as Republicans are trying to pass the biggest voter suppression bill in history, the Republican war on voting in court has not stopped. In fact, next week, the US Supreme Court will hear a critical voting case out of the state of Mississippi where the Republican National Committee is trying to throw out mail-in ballots. No surprise there.
In this episode, I'll break down what's at stake in Watson v RNC, what it means for the midterm elections and beyond, and whether the Republican National Committee is actually now admitting that Al Gore actually won the 2000 election. Look, it's going to be a journey. So, grab yourself a drink, strap in, and enjoy the ride. But before we get into it, make sure to subscribe to this channel to stay informed about how you can defend democracy.
So over the last few days and weeks, all of the talk in the pro-democracy world has been about the Save Act. This is the massive voter suppression law that was passed by the House earlier this year. Then Donald Trump got really nervous that he's going to lose the midterm elections. So he made a new version called the Save America Act and that is now pending before the Senate. If you want to catch up on that, we've written about it extensively at Democracy Docket and also in a prior video. You can check out both this website and also that video by looking in the links in the description below.
But what I want to focus on today is the war that continues to rage in the courts and in particular on one case that the United States Supreme Court is going to hear oral argument in next week. It's called Watson versus RNC and it began as a lawsuit by the Republican National Committee against the state of Mississippi. Now, if you're wondering why on earth is the RNC spending millions of dollars to litigate a case involving mail-in voting in Mississippi, the reason is clear. They don't care about Mississippi, right? After all, Mississippi is a safe Republican state, and it also doesn't allow no-excuse absentee voting. That's right. In order to vote in Mississippi, you either need to be out of town or sick. You need to have a reason why you can't vote in person. So, the Republican National Committee chose Mississippi to bring this lawsuit for a specific reason. They have been trying to mail-in voting through every means possible, right? We know this. They have been trying to just do away with it entirely. That's part of what Donald Trump wants to do through the Save Act. They try to it by requiring photo ID to vote by mail. I mean, what the hell does that even mean? That's another provision in the earlier version of the Save Act before Donald Trump just came out and said, "Look, let's just get rid of it entirely." They've been waring against dropboxes. Yeah. Yeah. You know, the secure metal containers. They've been trying to ban those all over the country. Right. So, we're used to this overall attack by Republicans against mail-in voting because Donald Trump has a war on mail-in voting and the Republican party does whatever Donald Trump tells them to do.
And one of the particular pieces in this war on voting, something that I wrote about all the way back at the beginning of democracy docket back in 2020 in March, I wrote an article entitled the four pillars to protect voting rights with vote by mail. And one of those four pillars to protect voting rights is making sure that voters who put their mail-in ballot in the postal service system before election day have that ballot counted. Put another way, no voter should be disenfranchised because they mailed their ballot back and the postal service took a while for it to be delivered. So if you, you know, fill out your mail-in ballot and you put it in the mail on the Thursday before election day, even if it takes until Wednesday or Thursday after election day, that ballot should be counted. Okay, that that's one of the core principles that I articulated way back at the beginning of Democracy Docket in 2020 as how we are going to make sure that there is not mass disenfranchisement of voting with people more people voting by mail.
Republicans of course picked up picked this up and came to the opposite conclusion. They were like, "Wait, Mark thinks this is a way not to disenfranchise people, so we want to do the things that Mark says shouldn't be done." And if you go back and read that article, you'll see that it lays out, you know, six years ago what is now many of the key battles about voting by mail. Again, if you haven't become a Democracy Docket subscriber yet, a great time to do it is right now. You could click on the links in front of you or in the description below.
About half the states, depending on how you count, follow the rule that I said made common sense back in 2020. Right? If you mail your mail-in ballot on time and it, you know, the postal service, you know, takes a long time, that that shouldn't disenfranchise you. You shouldn't pay that price. And that's particularly the case since DeJoy became the postmaster general under Donald Trump the first time. And we have seen these systematic cutting back in mail services that will delay these ballots. And again, democracy has covered this problem extensively. You know, now the postal service doesn't even postmark your mail at the local post office. Takes a day or two before the postmark gets added. That makes things even worse. Then, like in many parts of your country, your ballot goes through this regional center that may not even be in your state. So, you can live on Elm Street and two streets over on Maple Street is where your ballot is going to the local election office. And what you find out is it's actually going to a regional sorting facility outside the state. That's adding days upon days upon days. Okay, again, that's a big problem and one that Democracy Docket has covered.
But the Republicans don't see it as a problem. They see it as an opportunity. They're like, "This is great. Mail-in ballot's moving slowly. We can disenfranchise more people." And the way we're going to do it is we are going to say that your ballot has to be in by election day. Your mail-in ballot has to have gone through the entire system. It has to be in the hands of the election officials on or before election day. It's rich coming from a party that is banning dropboxes, I mentioned earlier, because dropboxes are a way that you can put your ballot in at 4:00 a.m. or 5:00 a.m. or 7:00 a.m. or 10:00 a.m. or even 10:00 p.m. and it gets picked up the same day by the election office. But they don't want that. They want there to be disenfranchisement. And they want there to be disenfranchisement because they believe that more Democrats vote by mail, which is true. and they believe that more ballots will be rejected as late received by voters who tend to vote Democratic and that is also borne out by the data. So a lot of people say, "Well, won't this backfire on the Republicans?" Republicans don't think so and they are probably right because in fact the populations least well served by the US Postal Service, shocker, tend to be young voters, tend to be minority voters, more transient populations, and even very older voters. All of which tend to vote Democratic.
Republicans have been trying to block this practice and my law firm and I, we've been suing them and we have been winning. And every place they go to try to make this argument, they lose. In fact, you may remember earlier this term, there was another case involving mail-in voting, involving actually the same issue that went before the US Supreme Court. This was the Bast case. Now, Bost is a Republican congressman from Illinois and he sued Illinois because they allowed this practice and they still do. Now, his case went up to the Supreme Court on the question of whether or not he had standing to bring this lawsuit. The Supreme Court said he did, and now it's back down at the lower courts. But what the Republican National Committee has been looking for is a case that they could get to the Supreme Court on this issue on the merits. In other words, force the Supreme Court to decide whether ballots postmarked by election day count or ballots postmarked by election day received afterwards don't. And again, about half the states allow them to be counted. So if the Republican National Committee gets its way, you're going to have a lot of votes thrown in the trash by voters who did everything right and were victimized by slow mail service.
So they filed this lawsuit in Mississippi, which is in the fifth circuit, one of the most conservative circuits in the country, if not the most conservative circuit in the country. And to their great surprise, we won. And by the way, when I say we, I mean we, like my law firm and I, we intervened in that case. Not that we didn't trust the RNC and the Mississippi Attorney General to be looking out for the voters of Mississippi on this big issue. My law firm, we represented Vet Voices and the Alliance for Retired Americans and we intervened in this case in order to make sure that, you know, our voice was present in the case saying how important it is that these ballots be counted. And to their credit, the Mississippi attorney general has defended the state's law. It was a curious journey because of course at any time if the RNC actually had cared about Mississippi, they could have just had the state of Mississippi change the law, right? I mean, the legislature is Republican through and through. The governor is Republican. They're all pro-Trump. And at an early point in the case, hilariously, it looked like that's what was going to happen. The law was going to get repealed. And then I don't know what happened. Maybe a phone call was made. They don't include me on those phone calls, but all of a sudden at the last minute, it looks like the RNC sent the message, "No, no, no, no. Don't change your law. We actually want the lawsuit." And like I said, we won. We won at the trial court. We won before a very conservative judge. And then it went up to the fifth circuit and the fifth circuit reversed. So the fifth circuit found that these ballots cannot be counted and that set the stage for what the RNC wanted, which was a vehicle that then got appealed to the US Supreme Court and the Supreme Court took that case and that case will be heard next week in the US Supreme Court.
So it's a case that, you know, earlier this year I argued a case in the Supreme Court in a campaign finance case. We're still waiting for the outcome there. My team has been very involved in the Louisiana case, the Klay case that everybody keeps waiting to come out. That's the voting rights act case that will have big impact on voting in particular redistricting. But this case, the Watson case, is actually the most important case of the term for just like the 2026 elections, right? Like if you're worried about like the outcome of 2026, you want to be paying attention to the Watson case because it directly impacts mail-in voting and can could potentially and very likely have impact in 2026. That is, if we lose. But I don't think we're going to lose. I think we're going to win. And here's why. The entire argument that the Republican National Committee boils down to one federal law. Yeah. It's the election day statute that sets the Tuesday following the first Monday in November as the day for federal elections. Okay, that's it. That's the entire legal argument. This entire thing is going up to the US Supreme Court. Millions of dollars are being spent by the Republicans to litigate this. And it really all boils down to whether or not the law that sets election day as the Tuesday following the first Monday of November, whether that means that the ballots have to be in by election day or they have to be cast by election day. Our position is have to be cast by election day. The RNC's position is they have to be received by election day. I'm pretty sure we're right. Okay. Like you can go back and look at the history of this and what states and the federal government were doing at the time that this very old law was first enacted. You can go back and look at the purpose of this law. You can look more recently at other congressional enactments where Congress has built on that law to, for example, provide for uniform rules for overseas and military voters. You can look at what the state practices is. Like I said, lots and lots of states have relied on the flexibility to do this. So I think however you slice it, we probably win. The most clean way for us to win, the clearest reason we should win is because just the plain text, right? It doesn't say that ballots have to be received by that day. It just says that that's the uniform election day. And elections are not the day that ballots are necessarily fully counted. I mean, the RNC would like that. I'll be back to that in a moment. It's the day that the ballots are cast, right? So, as long as the ballot is out of the possession of the voter on election day, then it seems to me pretty self-evident that we're all in good shape and the ballot should count.
What's really at stake here is not just these ballots that come in after election day. Yes, that is important. That will be tens of thousands or hundreds of thousands of ballots in the 2026 election. Okay, this is not a handful. When we talk nationwide, we're talking about a lot a lot of votes. And again, the Republicans believe they've disproportionately hurt Democrats. And Donald Trump is doing everything he can right now to try to disenfranchise Democrats. And this case is a part of that. I mean, they'd love to get the Save Act passed, don't get me wrong. They'd love to ban mail-in voting entirely, don't get me wrong, but this is kind of another way to chip away at the voting rights of people who vote by mail. And if you are not keeping abreast of all of the different ways Republicans are doing that, then actually you don't have the full picture because it's a lot of different ways they're trying to chip away at this. The best way to support the hard work of the Democracy Docket team, which is over 20 people, not yet over 30, but we're getting there, is to become a Democracy Docket subscriber by clicking on the link in front of you or in the description below. You're going to get lots of great information, so please take an opportunity to do that right now. Also, subscribe to this channel by hitting the button right in front of you.
Okay, so I said this is not just about mail-in voting. What did I mean by that? Well, if Republicans are right and the uniform election day statute means that the elections can only happen on election day, aren't they next going to argue that ballots received by election day but haven't yet been fully counted have to be thrown out? Right? I mean, after all, like where's where's the distinction that they're going to draw? I mean, I know I wouldn't say that, but but if you're the Republicans, right? How many times did we see Republicans on election night say, "Stop the count." Right? Remember Donald Trump with the blue wave and the that he says there were these dumps of ballots in the middle of the night, right? There's nothing Donald Trump wants more than to say no ballot that has not been counted by midnight can be counted at all. So that's not this case, but it's not not this case in the sense that Republicans are going to make that argument in the next case or the case after if they win this one.
What else? What about early voting? I mean, after all, I mean, the Republicans will argue in the future. If election day means the Tuesday following the first Monday in November, then certainly it doesn't mean early voting. Just look at what Republicans are saying. Look at what their activists are saying. Look at what people in this Department of Justice are saying about election day. Donald Trump says they want voting to only be in person on one day. They want all the ballots to be counted on that one day. That's their goal. This case is just the first piece of that goal. It's the way that they gain some momentum in an area where, frankly, they've gotten their ass kicked every single time. I mean, I don't have to repeat to you my record against Republicans in court on issues involving voting. I don't always win, but I usually win. And they usually wind up with their tail between their leg embarrassed and being yelled at by Steve Bannon and right-wing commentators about why they don't have a Mark Elias, why their lawyers suck. It's not that they don't have a lawyer who's good. They got plenty of good lawyers. They just got terrible legal theories. And that's because Donald Trump is driving their legal theories. Donald Trump decrees one day that, you know, you shouldn't have this and you should have that. And then everybody scurries around and tries to make it true even though it's not true. So they're searching for a win and this is what they're hoping will be the first domino. If they can block this, then they have started to gain some momentum and it's the reason why it is so important that we pay attention to this case and it is so important we pay attention to the Save Act. It's honestly so important why you subscribe to Democracy Docket and follow the cases they are tracking. I mean, they're tracking more than 160 cases right now in every state in the country. And by the way, that's not even including the 50 redistricting cases. Yeah, 50 redistricting cases. We are in the middle of a decade, like smack dab in the middle. And there are 50 redistricting cases. So again, I know I keep saying you got to sign up, but please do me a favor. You want to do a favor for me. A lot of you say how much you appreciate my work, go ahead and just subscribe to Democracy. It's free, right? It doesn't have to cost you anything. You can chip in and become a premium member if you want to support the team's efforts financially, but all I'm asking you to do is become a free member. Again, links on the screen in front of you in the description below.
All right. So, at the beginning of this episode, I told you that maybe all of this will change the outcome of the 2000 election. I mean, there's been a lot of ink spilled over the years about the butterfly ballot and how maybe that cost Al Gore the election. You know, the hanging chads, we all saw the images of the hanging chads, like maybe that cost Al Gore the election. Then there are like all of the issues of that race that people focus on and say, "Well, maybe this hurt, maybe that hurt, whatever." Well, I got a new one for you. Ready? So way back in 2000, right after the election when everybody was trying to figure out what the final tally was going to be, George Bush was winning by 537 votes. Now, that wound up being the margin, right? So, so just keep that in mind. Al Gore loses the presidential election because he loses Florida, the decisive swing state. Shows you how different things were back then than now. And he loses Florida by 537 votes. And George Bush is propelled to the White House as a result. There are a lot of cases going on and one of those cases involved a legal challenge to just under 2500 mail-in ballots that had come in from overseas voters after election day. I mean, what are the odds, right? These are ballots just like what we're talking about now in this Mississippi case. These are ballots that were voted and cast before election day, but then took time to arrive at the election offices in Florida. And wouldn't you know it, 1575 of those ballots were for George Bush and 836 of those votes were for Al Gore. According to the court that heard this case, quote, "Thus the overseas absentee votes received after November 7th resulted in a net gain to Bush of 739 votes." The certified difference between the candidates, as I told you at the beginning, was 537 votes. So the court said if those ballots were excluded, and I quote, "the result would be that Gore Lieberman would have an advantage over Bush Cheney of 202 votes." That's right. If you had excluded those ballots that had been cast before election day but received afterwards, Al Gore wins the election by 202 votes rather than by losing by 537 votes. There then never is a Bush versus Gore case because there is never a recount initiated by Gore. I mean, maybe then there would have been like a Gore Bush case. It would have been curious to see if the conservative justices on the US Supreme Court would have called that off the same way. But that we don't know. But what we do know for sure is that if the RNC's position today was the RNC's position then, Al Gore would have been elected president and would have taken office on January 20th, 2001.
Now, this is something more than just idle curiosity, right? This is more than just like a smart lawyer like me pointing out to you all, "Isn't it interesting that this would have affected a presidential election that happened 26 years ago?" No, I'm pointing this out because we put this in our brief. Like we put this in our brief to the US Supreme Court and said, "Look guys, this court seems to fly back that 2000 election pretty closely and called a whole lot of balls and strikes for George Bush." And though this issue never went up to the Supreme Court, this was resolving at the district court and then the 11th Circuit, this was underpinning all of that. Now, the RNC, they respond to our brief. They don't dispute the underlying facts, but they're sticking with their current legal position. In other words, they're all in for MAGA. And if the victim of that is George Bush's 2000 election, they're willing to live with that. If hypocrisy is the price they pay for their current position, sign them up for hypocrisy, right? Like they're unbounded by any concern about the fact that they literally won a presidential election based on the opposite theory of what they're arguing now. They are all in for disenfranchising voters today and whatever that means for the past, it means for the past.
The Department of Justice, who is also on the other side, also against us in this, right? Because would it be any other way? I mean, would you expect that the Department of Justice might take an independent look at whether or not disenfranchising tens or hundreds of thousands of American citizens, whether that's good or not? Do you expect them to independently read the law? No. They're just doing Donald Trump's bidding the same way the RNC is. You might as well just have two RNCs. We got the RNC out on Capitol Hill, I think they're building it. Then we've got the RNC downtown with the big banner of Donald Trump hanging on Constitution Avenue, right? The Department of Justice is not independent. The solicitor general is obviously not independent. They just do the bidding of Donald Trump. They just do whatever Donald Trump wants. That's why the Department of Justice is suing 30 states right now to try to access your sensitive voter information. To be clear, they want to access your sensitive voter information in 50 states. But there are 30 states that are fighting back. And in all 30 of those states, my law firm and I are fighting alongside voters to make sure that your information is protected.
But here's the thing, the Department of Justice, even here, sort of tried to finesse it. So the Department of Justice, in a nutshell, is saying this. They agree with the RNC when it comes to everybody but military voters. So they would say, "Well, look, yes, election day is election day. No ballot comes in afterwards can count if it is cast domestically, but if it's cast by military folks, then they do count and then we are in the postmark rule world." If that doesn't make any sense to you, it is because it does not make any sense. They've just decided that because Donald Trump, remember I said in the Save Act, he wants to ban mail-in voting except for people who are like out of town, sick, or in the military, like literally they are just making this up as he is making it up. So because he wants military voters to be able to vote by mail, they want military voters to be able to vote by mail and have their ballots come in later than everybody else. So I don't think the Supreme Court's going to buy that, right? I mean, like this is kind of like a binary one or the other. But that's where the Department of Justice is. So the RNC throws everyone's ballot out. The Department of Justice throws out everybody's ballot but the US military's. And that's where they line up.
This fight is going to be going on for a while. It's not going to end with this court case. So I mean, this court case is a big one and it is important that we win and those of us in the pro-democracy movement are paying really close attention to it. Lord knows I am because we are in this case and this is as important a case as any of the others to the future of free and fair elections. So, like, I'm paying close attention, but you should be too because when you get behind all of the hypocrisy and all of the cynicism and all of the efforts by Donald Trump to try to rig the elections and steal the elections and change the rules and put Republicans in charge of the vote counting, these are the kinds of changes, these small things like where do you cut off people being able to return a ballot and have it count? These are the things that decide really close elections. And the 2026 elections are going to be close. Like anyone who thinks that this is just going to be a walk in the park, you are wrong. And anyone who thinks it's totally rigged and that we don't have any chance, you're wrong too. Either you're on either side there, like go find some other YouTube channel. Go find some other podcast. I'm not your guy. Like, we are in the fight because we can win this. But only if we fight hard. Only if every single day we are willing to take it to the other side. And so, look, they come after me all the time and like, it's not going to slow me down. And as you can tell, since I'm talking about all these court cases that I'm involved in and my law firm's involved in, you know, there are going to be people fighting. But you have a role in this. You have a role in educating the people around you about what the Republicans are doing because they are right now trying to steal your rights in Congress. They are right now, I just told you, trying to steal your rights in court. And Lord knows Donald Trump's going to use executive orders and the power of paramilitary forces and ICE and DOJ, like he's going to use every tool available to the executive branch. And Congress, the best we can hope for Congress right now is that they do nothing. You know, when the Republicans threaten that if the Senate doesn't pass the Save Act, they'll stop passing bills, I keep thinking like, well, okay, like it's a Republican House, Republican Senate. Like, okay, don't pass any bills. But they are fully in alignment in fighting against your rights to vote. And as you saw by what I said about the 2000 election, there is no amount of hypocrisy that is going to stop them. This is an administration without shame. This is a movement without shame. They will do and say anything in order to hold power.
So what I need you to do is I need you to start by sharing this episode with your friends and your family. They need to be aware that this court case is going on. They need to know where the battle lines are being drawn, and they're not just being drawn in Congress, they're being drawn in the court. So, do me a favor and share this video. Also, leave me a comment. I love reading your comments. I pour over your comments to see what we could be doing better, what else we could be publishing, what other topics you want us to cover. And I've said several times, but really, big favor to me from you. Subscribe to Democracy Docket. It's free, right? It is the best way to stay informed. I built Democracy Docket in 2020 to be the resource for you to get access to accurate news, information, and analysis about what is happening to democracy and what's happening in the courts. And as the legacy media fails us, and every day they are failing us in new ways, Democracy Docket is growing, but it needs to scale bigger. It needs to become more influential. And the best way to do that is to become a subscriber. If you are already a subscriber, share that information with your friends and your family and have them sign up as well.
So, look, I'm all about this court case, this Watson v RNC. Like I said, me and my law firm, we're in the thick of it. But I need you all to be paying attention to it, too. And once we hear what they have to say, and certainly once we get a decision, I'll be back and I'll give you more analysis. So, finally, subscribe to this channel and hit the bell to make sure you are alerted whenever new content is posted. Thanks. I'll see you next time.