This Week's Lawsplainer: Election Integrity and Free Speech at a Crossroads
From Supreme Court scrutiny of mail-in ballot deadlines to a major settlement limiting government control of social media content
The courts made some progress this week in two important cases!
The Supreme Court heard oral arguments in a case that might finally bring order and security to this nation’s chaotic elections. We also finally saw accountability for a years-long effort to combat the Biden Administration’s efforts to coerce social media companies to suppress speech protected under the First Amendment.
Supreme Court hears challenges to Mississippi’s mail-in ballots.
On Monday, the Supreme Court heard oral argument in Watson v. Republican National Committee, a significant case for those concerned with secure elections, protecting against voter fraud, and some uniform standards for our election process throughout the country.
The question presented in Watson is whether the federal “election-day” statutes (concluding election day at midnight) preempt (or control instead of) state laws that accept ballots received by election officials after “the day for the election.”
Federal law “mandates holding all elections for Congress and the Presidency on a single day throughout the United States.” Foster v. Love, 522 U.S. 67, 70 (1997). This federal law preempts any conflicting state laws.
At issue is a Mississippi law that allows for the acceptance of absentee ballots “postmarked on or before the date of the election and received by the registrar no more than five (5) business days after the election.” This law codified measures that were undertaken due to the COVID-19 emergency back in 2020. The Fifth Circuit held that “[b]ecause Mississippi’s statute allows ballot receipt up to five days after the federal election day, it is preempted by federal law.” Republican National Committee v. Wetzel, 120 F.4th 200, 204 (5th Cir. 2024). In other words, the Fifth Circuit held that day means day—not five days later.
The stakes are high. Sixteen other states currently allow for the receipt of mailed ballots after election day. Illinois counts ballots up to 14 days after election if postmarked by election day. Nevada counts mail-in votes up to the fourth day following the election – even if it lacks a postmark. And in Washington, there is no deadline as long as it is postmarked no later than the date of the election. A ruling against Mississippi’s law would end those laws and confirm that an election is to take place on election day.
One of the biggest issues at oral argument was how “Election Day” under the federal statutes was to be defined. The State of Mississippi argued that “States must make a final choice of officers by Election Day. That is the plain meaning of an election.” The challengers of the Mississippi law observed that differing State rules about ballot postmarks and days by which a ballot must be received by officials “gives the lie to the idea that we have a uniform Election Day.”
The challengers of the Mississippi law faced the task of persuading the Supreme Court that early voting – a practice the Supreme Court does not want to do away with – differs from ballots received after election day. The challengers effectively contrasted these two issues:
“I would say, under our theory, early voting is permissible largely because it has a different history and because of this idea that the Election Day is the date where the election is consummated.”
Not all judges were persuaded by their arguments. The liberal wing – Justices Kagan, Sotomayor, and Jackson – are a near-certainty to let the late mail-in voting continue.
Justices Thomas and Alito – the more conservative members of the Supreme Court – were not convinced of Mississippi’s position. Justice Thomas noted that even during the Civil War, “proxy voting was a way to make sure that the vote occurred on Election Day as opposed to afterwards.” And Justice Alito observed there was not really a limit to when a mail-in ballot must be received by a State. He also noted problems with mail-in voting, such as the appearance of fraud and arguments that the apparent outcome of an election can be changed by the acceptance of a “big stash of ballots that flip the election.”
After oral argument, even the most experienced Supreme Court observers have found it difficult to predict how the Court will rule. As we saw after the 2020 election, the Supreme Court is not always willing to address the problems with our national elections. But this might be the start.
The Trump Administration settles claims against Biden’s censorship.
Back in 2022, a number of individuals – including Jay Bhattacharya, Dr. Aaron Kheriaty, Jill Hines, Jim Hoft – as well as the States of Missouri and Louisiana – filed suit against the federal government for the government’s efforts in unlawfully pressuring and coercing social media platforms to censor their posts about COVID-19, the Hunter Biden laptop, and the 2020 presidential election.
During discovery, it was revealed that there was a “coordinated censorship operation emanating from the highest levels of government.” The Biden Administration’s efforts to suppress free speech included:
Accusations that Facebook was causing “political violence” by failing to censor COVID-19 information.
A threatening email from a White House staffer to Facebook executives regarding COVID-19 content, stating “Internally we have been considering our options on what to do about it.”
Demands that social media companies change their algorithms to reduce public exposure to COVID-19 vaccine skeptics.
Requests that YouTube help combat COVID-19 vaccine hesitancy – a concern that was shared by the “highest levels” of the Biden White House.
An email from the Biden White House to Twitter (now X), demanding a tweet by Robert F. Kennedy, Jr. be “removed ASAP.”
Causing Amazon to change their content moderation policy regarding “sensitive books.”
An internal Facebook email from 2021 that stated: “The Surgeon General wants us to remove true information about side effects.”
The district court entered an injunction against the Biden Administration, noting the plaintiffs were likely to succeed on their claims because the social media companies moderated their content due to coercion by government officials in violation of the First Amendment. The Fifth Circuit affirmed that judgment with respect to the White House, the Surgeon General, the CDC, and the FBI.
In a decision that greatly disappointed us at Defending The Republic, Inc., the Supreme Court reversed that injunction. In an opinion written by Justice Barrett, it concluded that “neither the individual nor the state plaintiffs have established standing to seek an injunction against any defendant.” The Supreme Court concluded that it lacked jurisdiction “to reach the merits of the dispute.” The district court’s injunction was vacated and the case was remanded back to the district court.
The case continued at the district court. And on Tuesday, March 24, the Trump Administration entered a consent decree with the plaintiffs to settle the lawsuit. That agreement resolved all claims in the plaintiffs’ complaint and is binding on all parties – even the successors in the government – for the next 10 years.
Here is the key part of the agreement:
The Centers for Disease Control (CDC), the Cybersecurity and Infrastructure Security Agency (CISA), and their employees and agents, shall not threaten social media companies with punishment (legal, regulatory, or economic government sanctions) unless they remove, delete, or suppress social media content containing protected free speech.
The district court will have jurisdiction to enforce the consent decree and can issue orders necessary to redress any violations of the agreement by the government to not censor protected free speech. The agreement is limited to the plaintiffs that were part of the lawsuit and does not extend to non-parties.
From our perspective, it’s a start.