"In 2024 alone, more than 750,000 late-arriving ballots were counted because of a state’s grace period," Stern wrote. "Now there is a very real chance that the Supreme Court will wipe out these laws in one fell swoop, causing chaos in the upcoming midterms that could disproportionately impact Democratic voters."
"That news, in itself, is a five-alarm fire for democracy," he added. "But what makes it even more disturbing is the fact that so many justices proved eager to embrace a legal theory that is incoherent, dishonest, and rooted in paranoid hostility toward mail voting."
Stern singled out justices Samuel Alito and Brett Kavanaugh for seemingly embracing legal hostility to mail-in voting, which they seem to believe is rife with fraud, and he faulted them for cooking up bizarre fantasies to justify their baseless concerns.
"One by one, the Republican-appointed justices swatted away these inconvenient facts, fixating instead on wild hypotheticals about voter fraud," Stern wrote.
Alito asked the Mississippi solicitor general, who was defending the state law against the RNC's challenge, of he believed the court should consider whether Congress could pass statutes to fight the mere appearance of fraud, noting that some legal briefs had argued that confidence in election integrity could be undermined if ballots received after the polls closed appeared to change the election results.
"But Alito’s argument was not grounded in reality — or, for that matter, law," Stern wrote. "It is not the Supreme Court’s job to decide whether Mississippi’s law increases 'fraud or the appearance of fraud' (though it doesn’t). Its job is to decide whether Congress intended to foreclose grace periods for mail ballots when it set federal Election Day more than 150 years ago. It obviously did not; indeed, it could not have foreseen the widespread adoption of mail voting well over a century later."
"Besides, Alito’s logic (to the extent there was any) is circular: The only reason there may be an 'appearance of fraud' is because opponents of mail voting spread unfounded claims of fraud," he added. "If the resulting paranoia can be weaponized against otherwise valid voting rules, then the Republican Party has found a cheat code to kill off any election law in court."
Stern was chilled to hear that other conservatives on the court – especially Alito's doppelganger – appeared to buy into election fraud conspiracy theories that could result in a decision that could upend election laws in 30 states just months before the midterm elections.
"With his questions, it sounded as if Kavanaugh was trying to manage backlash to his eventual vote to, yes, 'disenfranchise' countless Americans," Stern wrote. "The justice continues to transform into the new Alito."
