SCOTUS End of Term Preview

**Brian Lehrer** (0:10)
Brian Lehrer on WNYC. So Supreme Court decisions expected this month, or maybe in the very first days of July, include birthright citizenship, temporary protected status that covers so many people who are here, who came seeking safety or who are allowed to stay because of safety concerns in their countries of origin, transgender athletes and mail-in ballots. That's a huge one in electoral terms, obviously.
So to break down what to watch out for and what's at stake in these closing weeks of the Supreme Court's 2025-2026 term, we are joined once again by Aziz Huq, Professor of Law at the University of Chicago Law School, author of the book The Rule of Law, A Very Short Introduction. And he's got a forthcoming one expected next year called Into the Dual State. Interesting concept, the dual state. We'll try to get a little preview before we end here. But Professor Huq, always good to have you. Welcome back to WNYC.

**Aziz Huq** (1:14)
Thank you so much for having me, Brian.

**Brian Lehrer** (1:16)
And listeners, if you have questions on any of mostly these big four that we're identifying as the big four Supreme Court cases that we'll get the results of very soon, call on in or text on in 212-433-WNYC, 212-433-9692.
Because Birthright Citizenship has gotten so much press, I want to start with Watson vs. Republican National Committee. That's the mail-in-ballots case. What's at stake?

**Aziz Huq** (1:49)
This is a case about a Mississippi statute that was enacted in 2020 in the context of the pandemic, allowing Mississippi voters to mail their ballot, have it postmarked by the day of the election, but have it received after the election, within five days of that, and still be counted. And the Republican National Committee and the Libertarian Party are challenging this Mississippi law, and there are kindred laws in about a dozen states, on the ground that there's a federal statute that says any ballot has to be both postmarked and received by election day, as a consequence of a pair of statutes that Congress enacted in the 1840s and the 1870s, saying that here is what election day is. This is the date.
And so the issue here is whether ballots that are postmarked but not received by the formal dates of the election will be counted in, let's say, November or subsequent elections.

**Brian Lehrer** (3:05)
So this is, it sounds to me like dancing on the head of a pin that the Supreme Court is going to have to do to decide whether election day under the law means the day that you cast a ballot or the day that the ballot is received.

**Aziz Huq** (3:23)
Right?
Challenges to the law that, who are the RNC and the libertarians, say, look, in the 1840s and the 1870s, there was no difference between those two dates. And so you, the court, should read the word election law in federal law to say, everything has to be into the state by whatever the day in November Congress is selected. The state, on the other hand, takes the position that, look, there was, in the 1840s and 1870s, no gap between the time that you handed in the ballot and the time the state received it, because nobody sent in ballots by mail. So, today, we're in a different world, and in that different world, it is somewhat nonsensical to ask what the people who passed these statutes would have made of mail-in ballots, because it just wasn't on their minds. And it certainly wasn't, argues the state, one of the problems that Congress was trying to fix when it passed these 1840s and 1870s statutes.

**Brian Lehrer** (4:30)
Would whatever the Supreme Court decides apply to this year's midterm elections, and would it apply to states other than Mississippi? Because New York, to take one of really many examples, has the same thing. As long as your ballot is postmarked by election day, it's going to be counted.

**Aziz Huq** (4:52)
I think it is likely that the court will invalidate the state statute, given the course of oral argument. And a ruling that comes in late June or early July would almost certainly be taken as applying in the forthcoming November elections.
I think that the court has shown itself willing to make major changes to the structure of not just general elections, but also primary elections, even within weeks of the election being held. I think the important example of that from this year is the court's effective abolition of the Voting Rights Act, Section 2 protections, in a case that came from Louisiana, where the court opened the door to an elimination of a majority black district in Louisiana, essentially in the midst of primary season. So if the court was willing to do that in the Voting Rights Act case, I don't see much ground for thinking that they would stay or somehow suspend the Watson decision if it comes out in the Challenger's favor until after 2020