On today’s BradCast, we turn briefly away from the folly and fallout of Trump’s war on Iran to focus again on the folly and fallout of Trump’s war on democracy here at home, with the critical 2026 Midterm Elections looming and threatened anew by Trump’s corrupted High Court. To that end, one of our favorite guests returns today to offer a bit of what we’ll describe as “hope”. [Audio link to full show follows this summary.]
FIRST UP… A few related election matters…
- In a somewhat bizarre — and seemingly unprecedented case — a Republican sheriff running for Governor in California recently seized more than 650,000 ballots from last year’s Special Election on Proposition 50. That was the ballot measure, overwhelmingly approved by almost 3.5 million votes, allowing the state Legislature to redraw California’s U.S. House maps to make them more friendly to Democrats in response to Republican gerrymanders in Texas, North Carolina and elsewhere. Riverside County Sheriff Chad Bianco announced on Friday that he’d obtained a warrant to take the ballots from the Riverside Registrar’s office on the basis of a claim made by a local “election protection” group that last year’s tally in the County included some 45,000 ballots that were not lawfully cast. Or something. State officials, including CA’s Democratic Attorney General and Secretary of State, are objecting to the seizure and tally which was initially to be carried out by the Sheriff’s staffers. The count was paused by a court earlier this month, before being restarted with a Special Master overseeing it late last week. We’ll try to keep our eyes on this bizarre story.
- In North Carolina today, the state’s most powerful Republican, state Senate President Pro Tempore Phil Berger, conceded his 23-vote loss in the state’s March 3rd Republican primary to Rockland County Sheriff Sam Page. Berger, who shepherded Trump’s demand for a mid-decade gerrymander through the state Legislature last year, was endorsed by Trump. He lost his primary nonetheless in the Republican-leaning district.
- On Monday at the White House, Donald Trump told media: “Mail-in voting means mail-in cheating,” adding, “I call it mail-in cheating, and we got to do something about it all.” It was also revealed on Monday, according to Palm Beach County, Florida records, that Trump cast a mail ballot for today’s Special Election, in the County where he is registered to vote. (Late word after today’s show: The Democratic candidate has won today’s Special Election in Florida for the state House in the District that includes Mar-a-Lago, flipping the seat from “red” to “blue”.)
THEN… On the very same day that it was revealed Trump voted yet again by absentee ballot — as he frequently does, even while claiming mail-in voting is fraudulent — in that Special Election, his Solicitor General was at the U.S. Supreme Court arguing against a law in deep “red” Mississippi that allows a five-day grace period for absentee ballots cast and postmarked prior to Election Day to arrive at the elections office to be counted.
Such laws are wildly popular around the country. Some 30 states allow similar. Mississippi’s Sec. of State defended it at the corrupted High Court against Trump and the Republican National Committee‘s challenge. The Court’s farthest right members — Justices Thomas, Gorsuch, Alito and Kavanaugh — offered a series of bizarre hypotheticals about weird ways in which someone might try to exploit such laws to steal an election. (One of Gorsuch’s took the prize. It had something to do with mail voters attempting to “recall” their late arriving ballots after Election Day. Tune in for the details on that absurdity which apparently went on to take up about 40 minutes of the two-hour oral argument!)
Then there was Alito’s argument that because Congress declared Labor Day, Memorial Day and Washington’s Birthday to be held on a specific day, that means they never meant people should be able to count votes after Election Day, even if they were clearly cast before hand. But, what about Early Voting? What about those whose mail ballot arrives before Election Day? As our guest explains, the rightwing Justices did their best to avoid those questions.
We’re joined today by the great MARK JOSEPH STERN, longtime legal journalist at Slate, who was, let’s say, chagrined by the radical and ridiculously Trumpy arguments offered by at least four of the Trump-friendly Republican Justices.
“Of course the reality is that we do not all vote on Election Day, and our ballots are not all counted on Election Day. So if the plaintiff’s theory is correct, and if Alito is correct that the day is the day — that there is this 24-hour period where everything has to happen — then early voting is illegal, mail voting is illegal, and no ballots can be counted after midnight on Election Day,” asserts Stern. “If it’s not your birthday after midnight, then it can’t be Election Day after midnight. There has to be a timer that goes off and every ballot that hasn’t been counted just needs to be set on fire because the day is over. That’s the implication of his theory.”
The theory falls far short of facts and reality, including the notion that Congress, when establishing Election Day in federal law, really meant that ballots could only be cast and counted on that day. But that defies the way the nation has voted going back at least to the Civil War, when soldiers deployed in the field cast their ballots early by mail.
“If you take these theories seriously, it means that the way that we have conducted elections in this country, going back to the Civil War, has been unlawful and nobody knew it until now,” Stern tells me. “Congress secretly smuggled in this ban on early voting, and nobody figured it out until the geniuses on the 5th Circuit did in 2024.”
He calls it “a completely absurd and fantastical legal theory, just flying in the face of ‘Support Our Troops.’ Because what this theory would do in practice is ensure that a whole lot of service members who are serving in uniform abroad would not be able to have their votes counted in elections.”
“Just to be clear,” Stern emphasized, “at no point has Congress ever passed a law that says that states cannot count late-arriving ballots.” In fact, as he also notes, “there are a lot of states that actually enacted these laws specifically to help military and overseas voters. And when Congress came in, a few decades ago, and issued these new rules about military and overseas voters, it specifically deferred to the states’ ballot deadlines. So Congress knew at the time that some states were allowing these ballots to come in late, as long as they were sent by Election Day.”
And that is key. Because, the Constitution grants the States the power to determine the “manner” of their own elections, unless Congress adopts a law that counters a state regulation. Congress has done no such thing in this case. Even if the Court’s radical members don’t like a state law, they have no Constitutional power — at least for those who bother to read the Constitution conservatively — to block such laws.
Despite the chaos and disenfranchisement it would cause — about 750,000 ballots were tallied that way in the 2024 election alone — and as absurd as all of this seems, you may have seen headlines from a bunch of media outlets’ coverage of Monday’s oral argument, suggesting that the Court’s “conservatives” seem prepared to strike down the counting of late arriving ballots this November. (NYT: “Supreme Court Appears Poised to Reject Late-Arriving Mail-In Ballots Law”; AP: “Supreme Court sounds skeptical of late-arriving ballots, a Trump target”; Guardian: “US supreme court appears poised to limit mail-in ballots ahead of midterms”, etc.)
While all three liberal Justices will vote in favor of the plaintiff and the counting of late-arriving ballots, and four of the Court’s radical rightwingers seem prepared to vote against, the matter will likely come down to Chief Justice John Roberts and Justice Amy Coney Barrett.
“Not very encouraging whenever we’re having to rely on John and Amy to come to their senses,” quips Stern, before noting hopefully: “There’s an old saying that ‘sometimes an opinion won’t write.’ I really think if there were ever an instance where that could happen, it would be here.”
As I express gratefulness for his optimism he counters: “I’m not sure optimism is the right word. But I will say that despair is never a helpful emotion when we’re talking about the Supreme Court. And despair is what the bad guys want us to feel. So I’m choosing to hold out some hope.”
Nonetheless, he cautions against betting “on the outcome that I foresee is possible. Because, again, if you bet on this Court doing the worst thing imaginable, that bet quite often pays off.”
FINALLY… We close with Desi Doyen and our latest Green News Report, with a look at the climate and environmental damage from Trump’s war on Iran, and much more…
Stern is my favorite supreme court journalist. Can’t wait to listen to this!