If an argument the Republican National Committee is making today had prevailed in 2000, then Al Gore would have been the 43rd president of the United States.
Lawyers for the RNC went to the Supreme Court on Monday to make their case for throwing out any mail-in ballots received after Election Day.
One major bloc of voters who would be affected by such a radical shift is the 1.3 million Americans on active duty in the military, especially the hundreds of thousands of service members stationed overseas and in war zones.
It was precisely those late-arriving military ballots that helped put George W. Bush over the top in the tense days after the 2000 election.
It was precisely those late-arriving military ballots that helped put George W. Bush over the top in the tense days after the 2000 election. A GOP push to accept absentee ballots from overseas — and the military voters among them — ended up producing a net gain of 739 votes for Bush in Florida, enough to secure the crucial state he needed to win the presidency.
But the Bush campaign wasn’t a passive beneficiary of this outcome. In the days after the election, it lodged preemptive legal complaints to prevent military ballots from being tossed and argued that the Gore campaign was seeking to disenfranchise the troops for even considering challenging some of the ballots. Republicans went county by county in Florida to ensure the ballots were counted.
The RNC position today contradicts every aspect of that effort.
In Watson v. Republican National Committee, lawyers for the national party are arguing that since federal statutes dating back more than a century refer to a uniform national Election Day, ballots can’t be counted if they arrive even one day later. “Election Day means Election Day,” said multiple Republican officials supporting the effort to reject late-arriving mail ballots.
This, of course, ignores the difference between casting a ballot and counting it.
Twenty-nine states count ballots that arrive late provided they were cast before Election Day — for the same reason that voters who show up at a polling place on time but are stuck in a long line are permitted to cast a ballot even after polls close. The general principle is if you did everything right under the law, your vote should not be thrown out because of a logistical issue out of your control.
That principle is even stronger for members of the military, whose technical issues arise because they are serving their country.
In 2000, the Bush campaign leaned heavily on those arguments, pressuring local canvassing boards in Republican-leaning areas to accept hundreds of mail ballots from overseas sent without postmarks, postmarked after the election or sent without a required witness signature, among other flaws, according to a 2001 New York Times analysis of ballots.
When Democratic officials called for rejecting ballots without a postmark, which would include a number of military ballots, the Bush campaign went on the attack. Among other things, it issued a statement from retired Gen. H. Norman Schwarzkopf calling it “a very sad day for our country” when service members find that “because of some technicality out of their control they are denied the right to vote for president of the United States, who will be their commander in chief.”
Speaking for the Bush campaign, Republican Marc Racicot, then the Republican governor of Montana, went further, saying at a press conference that Gore’s lawyers “have gone to war, in my judgment, against the men and women who serve in our armed services.”
Now, the RNC, led by a longtime supporter of President Donald Trump, is looking to change the rules in a way that would ensure thousands of late-arriving military mail ballots are thrown out. And it is making its case before a high court that includes one justice who was on the court during Bush v. Gore (Clarence Thomas) and three justices who assisted Bush’s legal team (John Roberts, Brett Kavanaugh and Amy Coney Barrett). If anyone should see through these arguments, it should be them, but that’s not a sure thing with this court.
Monday’s oral argument at the Supreme Court took place as the Senate continued to debate the Trump-backed SAVE Act, which would create even more impediments for military voters by essentially banning the federal “post card” voter registration that hundreds of thousands of military and overseas voters use each year. The legislation would throw up barriers to online voter registration and require that military ID used as voter ID be accompanied by a military service record showing the service member was born in the U.S.
To be fair, Trump and his allies aren’t singling out military voters, who generally identify more with the Republican Party in surveys. Today’s GOP is just willing to sacrifice military voters’ ability to cast a ballot easily in a quest to make it harder for everyone to vote, by mail or otherwise. As Republicans make their arguments to the highest court in the land, it’s worth remembering that not so long ago they argued that not counting military ballots would dishonor their service.
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