The U.S. Supreme Court is currently reviewing a case that challenges the legality of state laws permitting mail ballots to be counted if they arrive after Election Day but were postmarked by the deadline. The decision in Watson v. Republican National Committee, originating from Mississippi, could impact election procedures in approximately 20 states and territories. The case centers on the interpretation of federal law establishing Election Day and the extent of state authority in setting election deadlines, with arguments presented regarding voter access, logistical challenges, and election integrity concerns.
Supreme Court to Address Post-Election Day Ballot Counting
The U.S. Supreme Court has undertaken a review of state laws that allow mail ballots postmarked by Election Day to be counted even if they are received by election officials after that date. The case, Watson v. Republican National Committee, stems from a challenge to a Mississippi state law.
The central legal question before the Court is the interpretation of federal statutes from the 1800s that established the uniform Election Day as the Tuesday after the first Monday in November. Challengers contend that these statutes mandate ballots must be both cast and received by Election Day. Supporters of the grace periods argue that federal law does not prohibit states from extending ballot receipt deadlines, provided votes are cast by Election Day.
Mississippi Case Background
Mississippi's law, which was amended in 2020 during the COVID-19 pandemic, allows mail ballots postmarked by Election Day to be counted if they arrive within five business days of the election. This law limits eligibility to specific groups, such as elderly and disabled individuals. The Republican National Committee (RNC), along with Mississippi's Republican and Libertarian parties, initiated a lawsuit challenging this provision.
A U.S. district court initially upheld Mississippi's law, interpreting "election" as the voter's final selection of a candidate. However, the U.S. Court of Appeals for the 5th Circuit reversed this decision, stating that federal law takes precedence and an election remains ongoing as long as ballots are being received. Mississippi officials subsequently appealed the 5th Circuit's ruling to the Supreme Court.
Arguments in Favor of Grace Periods
Supporters of state grace periods, including Mississippi Secretary of State Michael Watson, argue that the U.S. Constitution's Elections Clause grants states the authority to establish rules for federal elections, reflecting principles of federalism. They contend that an "election" primarily refers to the voter's act of choosing a candidate and submitting a ballot by Election Day.
These grace periods are presented as essential to accommodate potential delays related to postal service issues, unforeseen circumstances such as severe weather or natural disasters, and logistical challenges.
Voting rights advocates, military voters, and overseas citizens, whose ballots often face extended delivery times, have filed amicus briefs emphasizing that these grace periods are crucial for ensuring their votes are counted. Rural areas, such as those in Alaska, also heavily rely on these extended deadlines due to geographic and connectivity challenges. It was noted by some justices that federal laws like the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) acknowledge such grace periods.
Arguments Against Grace Periods
Opponents, including the RNC, assert that Congress, not individual states, holds the authority to determine the conclusion of elections, and that Congress established a uniform Election Day. They argue that federal law requires all ballots to be both cast and received by Election Day itself, and that the term "election" encompasses both the submission and receipt of ballots.
The RNC and others contend that allowing varying ballot-receipt deadlines across states contradicts Congress's original aim of establishing a uniform election day in the 19th century. Concerns have also been raised regarding the potential for election fraud and the erosion of public confidence if results are significantly altered by later-counted mailed ballots.
During arguments, some conservative justices questioned the possibility of voters recalling ballots through mail services after mailing them, though Mississippi's solicitor general stated this does not occur in the state. Other conservative justices questioned the legality of early voting and whether Congress intended to prohibit ballots arriving after Election Day.
Broader Implications for States
Approximately 20 U.S. states and territories currently permit the counting of mail ballots that arrive after Election Day, provided they are postmarked by the deadline. This includes 14 states and the District of Columbia, with examples such as California, New York, Texas, and Illinois, which operate with post-Election Day deadlines for ballot receipt. Additionally, 29 states currently allow extended deadlines for voters abroad and military personnel. A Supreme Court decision to overturn Mississippi's law could necessitate significant and rapid changes to election procedures in these jurisdictions.
Election officials have expressed concerns that compelling states to alter their practices just months before an election could lead to confusion and voter disenfranchisement, particularly in areas with long-standing relaxed deadlines. For example, Alaska's unique geography means many communities rely on extended periods for ballot delivery, with some communities lacking in-person voting. In 2022, ballots from six Alaskan rural villages were not counted due to delayed delivery.
Ahead of the 2024 election, the RNC has filed multiple legal challenges against state-level grace period laws, including in Nevada. In response, several Republican-led states, including Utah, Ohio, Kansas, and North Dakota, have rescinded their mail ballot grace periods. Former President Trump has also advocated for the nationwide elimination of these periods, including through an executive order. President Trump has asserted that mail balloting leads to fraud.
Related Ruling on Candidate Standing
Separately, the U.S. Supreme Court recently ruled that political candidates possess the legal standing to challenge election laws before voting or counting commences. This 7-2 decision, which originated from a case involving Illinois Republican U.S. Rep. Michael Bost, departed from a lower court ruling that had denied such standing.
Chief Justice John Roberts authored the majority opinion, stating that:
"candidates have a concrete and particularized interest in the rules that govern the counting of votes in their elections."
Justices Ketanji Brown Jackson and Sonia Sotomayor dissented, with Justice Jackson arguing that the court was granting candidates the ability to sue in advance of provable harm, a right generally not afforded to most voters.
Reactions to this standing decision varied, with Justin Riemer of Restoring Integrity and Trust in Elections describing it as "a major win for the rule of law," while Wendy Weiser of the Brennan Center for Justice expressed concern that allowing candidates to challenge laws without proving harm could lead to an increase in frivolous lawsuits.
Anticipated Decision
The Supreme Court heard arguments in the Watson v. Republican National Committee case on a Monday. A decision is anticipated by late June or early July, which could provide guidance for the upcoming midterm and future congressional elections.