Sotomayor Grills RNC Lawyer On Mail-In Ballots: ‘Maybe We Should Have Another President Now?’

Supreme Court Justice Sonia Sotomayor challenged Paul Clement, a lawyer for the Republican National Committee, on whether or not President George W. Bush’s 2000 election victory would have been legal should the RNC win its current case before the Supreme Court, which is looking to restrict mail-in voting.

The RNC is arguing before the Supreme Court to defend a conservative federal court that ruled in a case from Mississippi that the state cannot accept mail-in ballots after election day, under federal law. The case is part of President Donald Trump’s push to change election laws to try to combat what he sees as rampant election fraud, although no evidence has ever been made public of election fraud impacting the outcome of U.S. elections.

“You believe that absentee voting by the military and overseas voters, the various federal laws under which states have proceeded with respect to those votes are illegal? Or they’re not saying what everybody has understood them to say—that states can accept absentee ballots after the election? Military and overseas voters,” Sotomayor challenged during oral arguments.

“I don’t think any vote is unlawful. Let me try to address how I think you would reconcile UOCAVA (The Uniformed and Overseas Citizens Absentee Voting Act) with the Election Day statutes,” replied Clement, adding:

And to start, I think it’s important to recognize that UOCAVA is not limited to the federal general election. So UOCAVA applies to primary elections, to runoff elections, and special elections, and federal general elections. The Election Day statutes only apply to the general federal election. So the way I would reconcile the two is to say that all the references in UOCAVA to state deadlines are perfectly fine, not preempted at all, not displaced at all, not even anomalous with respect to the primaries, the runoffs and the special elections.

Then the court has a job to do in the federal general election—to say, like, which is the specific and which is general. I think the more logical way to do it would be to say that with the understanding in this court, if you decide in our favor, that for the federal general election, the ballots have to be in by Election Day.

“Maybe we should have another president now, because wasn’t it in Florida that they were counting military votes after receipt?” Sotomayor hit back.

“So with all due respect, that is the reddest of red herrings. Because what happened in the 2000 election in Florida is that pursuant to a consent decree that was entered by a federal court because Florida was violating the principal provision of UOCAVA—which says you have to give the absentee ballots to the overseas voters 45 days in advance—because Florida was violating that, there had to be a consent decree to create a remedy that was not provided under state law,” Clement hit back.

“What happened was that the judge made up the deadline, not the state,” concluded Sotomayor.

Pundits were quick to note, following the oral arguments, that the RNC looked likely to win the case, which would have a sweeping impact on elections, as some 29 states accept mail-in ballots after election day.

Watch the clip above via C-SPAN.

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