Election Money, Mail-In Ballots, and the Supreme Court

In this episode, Kathryn Johnson and law professors Joshua Kleinfeld and Ilan Wurman take on three fights over the rules of American elections — and the deeper question of who should control them.

First is the Supreme Court’s 6-3 decision in NRSC v. FEC, which freed political parties to spend unlimited amounts in coordination with their candidates. What is the case really about? Why did it split along partisan lines? Why do Republicans want stronger parties while Democrats prefer a system dominated by advocacy groups? And was the Court's most famous campaign finance case — Citizens United — sound originalism or did it wrongly treat massive publicly traded corporations as if they were small advocacy groups, handing the managerial class a First Amendment license to push progressive politics with corporate money? (Josh and Ilan fight this one out!)

Second is Watson v. RNC, the case on the meaning of “Election Day.” On the surface, the case is a technical dispute over whether mail-in ballots must be received or merely sent by Election Day. But under the surface is a larger struggle over who controls the ground rules of counting -- and what rules best protect the integrity of American elections.

Third is President Trump’s executive order on mail-in ballot integrity. Trump directed the Postal Service and other agencies to develop stronger rules — and a district court blocked the order before the agencies had even acted. Is that a proper use of judicial power? Or is the real game simply to freeze the status quo before the midterms?

This is the rational — and based — discussion of the rules of the political game that you won’t hear anywhere else.

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