Emotions can cause even the smartest among us to lose perspective, and I am afraid that the usually sharp Supreme Court Justice Samuel Alito has let his apparent panic over phantom voter fraud cloud his judgment in some of the Court’s most recent election cases. As the Court has navigated such cases, including a recent last-minute emergency election case, the good news is that cooler heads have prevailed in rejecting Justice Alito’s analyses as contrary to both the evidence and appellate review standards. Should the Supreme Court face post-election litigation in which claims of voter fraud again play a role, Justices should again respond to Justice Alito’s boogeyman the way parents respond to a child irrationally afraid of the monster under the bed: with calmness, compassion, demonstrable evidence, and a firm grasp on reality. 

Consider the two recent examples, California v. USPS and Watson v. Republican National Committee, in which voter fraud claims attracted Justice Alito’s support. 

USPS arose out of a March 2026 executive order from President Donald Trump directing the United States Postal Service to come up with a rule that would limit its ability to accept ballots that states wished to mail to voters. Among other things, the USPS rule requires states to conform their ballot envelope design to federal standards, including the use of an “intelligent bar code” to track mail to individual recipients. It also requires states to upload to a USPS web “portal” a list of eligible voters who would be receiving ballots, and for USPS to match those names with state-submitted ballots and reject a batch of ballots if there are any discrepancies.

Twenty-three states, voting rights groups, and a Democratic committee were among the plaintiffs suing over the rule, claiming among other things that the rule exceeded USPS authority and was unconstitutional. They each sought a preliminary injunction to prevent USPS from implementing the rule for the midterm elections. 

A federal district court in Massachusetts first enjoined USPS from promulgating a final rule, a decision reversed by the Supreme Court on grounds that the suit was premature in the absence of a final rule. Once USPS issued its final rule, the district court first issued a temporary restraining order against its enforcement in 2026, and then a preliminary injunction doing the same.

USPS’s challenge to that second preliminary injunction reached the Supreme Court on September 6, 2026, after some states had already begun mailing ballots. When courts consider whether to grant or deny preliminary relief like the stay of the district court’s preliminary injunction that USPS asked the Supreme Court to grant in this case, one key factor is the “balancing of the equities.” Here, courts compare the harm to the party seeking preliminary relief if the court denies relief, with the harm to the party against whom relief is sought if the court grants relief. Courts also consider whether or not preliminary relief is in the public interest. This kind of balancing is necessary because courts are making a decision before all the evidence is in and the legal arguments are fully developed.

In the USPS case, the balance of the equities was as lopsided as one could imagine (a point I made with other election law and remedies professors in an amicus brief). Even at the time that USPS sought Supreme Court relief to put its rule into effect for 2026, it did not have a working portal, and it did not have a firm estimate for when the portal would be working. That meant that the Postal Service would have been forbidden by the rule from accepting any ballots from any state. Those who depend on mail ballots, including the elderly, disabled, rural and Native voters, and military voters within the United States would have faced special burdens. The burdens on the plaintiffs and third parties were immense.

On the other side of the ledger, USPS claimed that blocking its rule for the 2026 election would open the door to election fraud. Among the many problems with this argument was that USPS put forth no evidence at the district court that its rule would stop any voter fraud. The district court in its preliminary injunction ruling found that “the record includes no evidence related to fraudulent mail voting to support the rushed implementation of the Final Rule.” Indeed, even if the matching of voter information via the portal could eventually stop some fraud, the absence of a working portal meant that the system could not do so in 2026.

The Supreme Court sided against the USPS, citing not just the fact that USPS likely lacked authority to promulgate the rule, but also the balance of the equities. Justice Alito, joined by Justice Clarence Thomas, dissented. In a single sentence in an eight-page dissent, Alito wrote that, “As for the equities, the Government has a strong interest in enforcing the rule, and implementing it will also ‘enhance the visibility of Federal Ballot Mail’ in order to better detect election fraud.”

As an appeals court, the Supreme Court is supposed to defer to a lower court’s factual findings unless they are “clearly erroneous.” Justice Alito did not even acknowledge that the district court had found that the rule could not prevent fraud in 2026, much less show how the lower court’s conclusion was clearly erroneous. He also did not even mention the disenfranchising effect of the 2026 implementation on some of our most vulnerable voters in balancing the equities (including, I would add, millions of Republican voters).

Alito’s talismanic incantation of “election fraud” was no surprise given his dissent in the Watson case that the Supreme Court decided last June. Watson concerned whether a federal statute setting a uniform “election day” for federal elections precluded states from accepting ballots mailed by election day but arriving after election day. The legal question turned on whether an “election” is the day that voters choose their candidates (as the majority held, accepting its commonsense and common meaning) or the day that both voters choose and election officials receive their ballots (as Justice Alito for the dissenters argued). 

In the last part of his dissenting opinion, Justice Alito went on a tirade about fraud committed through mail-in ballots, citing some examples, many of which were decades old. But regardless of how much fraud could be committed with mail ballots, Justice Alito failed to show, or point to any evidence in the record or district court findings showing, that states accepting timely mailed ballots arriving after election day suffer from more fraud, or that these last-minute mailed ballots are more prone to fraud. Once again, the specter of such fraud was enough to convince Justice Alito (and Justices Thomas, Kavanaugh, and Gorsuch who joined him on this point) to interpret the meaning of “election” in the most convoluted way.

Justice Amy Coney Barrett, writing for a majority of the Court, rejected these specious arguments, noting that “plaintiffs and the dissent argue that if we uphold Mississippi’s law [on late arriving ballots], States could put party bosses, ballot harvesters, or Uber drivers in charge of collecting ballots. Yet this would also be permissible under their interpretation, so long as the ballots are delivered by election day.”

I have little doubt that if post-election cases reach the Supreme Court in 2026, arguments about voter fraud again will figure prominently and they will attract the support of Justice Alito (and likely Justice Thomas too, who has voted lockstep with him in these cases). Whether he is watching too much Fox News or acting for other reasons, Justice Alito seems to be emotionally unable to rationally examine the actual evidence in the cases before him to see if they support his voter fraud arguments.

Other Supreme Court Justices have shown in USPS and Watson that they can see through the shallowness of Justice Alito’s election fraud arguments. I hope that this reasoned approach continues, with the Justices calmly focused on the evidence before them, not the scary monster under the bed.