Watson v. Republican National Committee · ¶43

Moreover, even accepting plaintiffs’ interpretive approach, it is not clear why 19th-century election practices are dispositive. Plaintiffs focus on them because the first two election-day statutes were enacted in that period. But shortly after the third statute was enacted in 1914, absentee voting became popular again as a result of World War I—and this time, some States began counting absentee ballots received after election day. See 1918 Md. Laws, at 130; 1919 Kan. Sess. Laws, at 252–253; see also Cal. Political Code ch. 14, §§1359(b)–(c), 1360, at 363–364. If we interpret the election-day statutes by drawing inferences from state behavior, it is unclear why we cannot account for the time of the third statute too. And once we move beyond the 19th century, historical practice undercuts plaintiffs’ position.

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