With a flurry of cases decided last month, the Supreme Court has officially wrapped up its latest term. Much of the attention was absorbed by the Court’s ruling on birthright citizenship in Trump v. Barbara, a decision that provoked outrage and indignation from immigration hawks.
But amidst this furor, another important decision flew under the radar. This was Watson v. Republican National Committee, in which the Court ruled 5–4 that federal law did not prevent mail-in ballots from being counted even if they were received after election day. Justice Amy Coney Barrett wrote the majority opinion drawing on precedent and historical practice to uphold a Mississippi law allowing absentee ballots postmarked on or before the date of an election to be counted as long as they arrived within five business days of the election.
Yet she seems to have misread the record.
In her opinion, Justice Barrett argues that the arc of history bends toward greater absentee voting. She observes that, during the early years of our republic, voters necessarily cast their ballots in the districts in which they lived, but that this changed during the Civil War when soldiers were permitted to “vote from afar by absentee ballot.” The plaintiffs in Watson had raised the point that, in most cases, Union soldiers didn’t actually vote by mail—rather, states tended to prefer “field-voting,” by which ad hoc polling places were created wherever the armies happened to be. Barrett was apparently unconvinced; in her view, this was simply a matter of state preference or local expediency, and the use of mail-in ballots (which did also occur) was just as legitimate.
Curiously, though, in her opinion she cites the case of Chase v. Miller as an example of the in-person voting regime swept away by the exigencies of war. Decided by Pennsylvania’s Supreme Court in 1862, Chase concerned absentee or non-district voting in a local election in Luzerne County. Chase and Miller were two candidates for district attorney; and, as the election in which they vied occurred in the fall of 1861, it was the first the area had seen which featured the “soldier vote” of volunteer soldiers casting ballots in the field.
What makes this an odd citation for Justice Barrett is that the decision in Chase articulates precisely why in-person, in-district voting is so important. Judge George Woodward, who authored the opinion, carefully explained why his state’s constitution could not be set aside even in the middle of a civil war. At the heart of this was a Jacksonian defense of the “free and honest suffrage on which all our institutions are built.”
In Chase, the Court was asked to interpret a provision of a section of a somewhat obscure 1839 law against the Pennsylvania Constitution’s requirement that voters reside in a recognized election district 10 days prior to the election. That law, which had passed on the rather chaotic final day of a legislative session, was essentially a reprint of an earlier law which required that any vote must be within two miles of the “usual place of voting” for a volunteer in actual service (it was intended, in other words, to provide members of the state militia with flexibility while on duty in the state).
The upshot was that to recognize the ballots of Pennsylvanians serving in uniform further afield, the judges would have to set aside their state’s constitution. This they declined to do. Pennsylvania’s lawmakers, Woodward wrote, could not have had “any thought whatever of legalizing military voting outside of our own territorial limits;” their intent was purely to give citizen soldiers in service within the state an opportunity to vote outside their domiciles.
Ever the Jacksonian, Woodward thought that the idea of absentee voting-–even for soldiers literally fighting a war—was so dangerous that it was “scarcely possible to conceive of any provision and practice that could, at so many points, offend the cherished policy of Pennsylvania in respect to suffrage.” This suffrage, he pointed out, was “a sacred trust committed only to that portion of the citizens who come up to the prescribed standards of qualifications;” it could therefore only “be exercised by them at the time and place and in the manner pre-arranged by the public law and proclamations.”
The absentee voting contemplated here was inherently suspect to Woodward, inviting “the most odious frauds.” Rather than maintaining what we would now call a “chain of custody,” this system would allow the ballot boxes into which soldiers would place their votes “to be opened anywhere, within or without our State,” with no guards or reassurances other than the authority of commanding officers who “may not themselves be voters, nor subject to our jurisdiction.” The fear was less that Pennsylvania’s boys in blue would commit fraud than that the “political speculators, who prowled about the military camps” would find and seize “opportunities to destroy true ballots and substitute false ones, to forge and falsify returns, and to cheat citizen and soldier alike out of the fair and equal election provided by law.”
Underpinning this view was a fundamentally democratic approach to jurisprudence. The Court’s decision, Woodward wrote, was not “stringent, harsh, or technical.” It was, rather, “a natural and obvious reading” of the constitution, of the sort that everyday Americans would “instinctively adopt.” In other words, laws mean what they say, and “judicial glosses and refinements are misplaced when laid upon them.”
Justice Barrett and the majority in Watson could learn from this regard for the sanctity of the vote. An emphasis on in-person voting isn’t anti-democratic. Quite the opposite. The preservation of our republican institutions depends on precisely the understanding of citizenship and political community that Judge Woodward articulated over a century and a half ago. As Justice Alito put in his dissent, “from this Nation’s founding until the last few decades of the 20th century… having an ‘election’ on a particular day meant completing ballot collection on that day.” We would be wise to again embrace “free and honest suffrage” over the vagaries and capriciousness of our modern approach to voting.
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