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Supreme Court Hears Arguments to Overturn Mississippi Law Allowing Late-Arriving Mail-In Ballots
Three days after a federal election in Mississippi, a postal worker can deliver a mail-in absentee ballot, postmarked two days before the date of the election, to the registrar’s office. They seal and secure the ballot as state law requires, and election officers tally the vote as they would any other ballot.
On Monday, before the U.S. Supreme Court, the Republican National Committee and the Mississippi Republican Party argued that this form of mail-in absentee voting is not only unconstitutional but also preempted by Congressional statutes governing federal elections.
Mississippi’s mail-in voting law was initially upheld by U.S. District Judge Louis Guirola, Jr., in a lawsuit filed against Mississippi Secretary of State Michael Watson, Justin Wetzel, the clerk and registrar of the Circuit Court of Harrison County, Mississippi, and the members of the Harrison County Election Commission.
After the U.S. Court of Appeals for the Fifth Circuit reversed Judge Guirola’s decision, Watson petitioned for a writ of certiorari with the Supreme Court.
Representing the RNC and the Mississippi Republican Party, Paul Clement argued that the state’s position was “wrong as a matter of text, precedent, history, and common sense.”
To accommodate voters during the COVID pandemic, Mississippi changed its election laws to count mail-in ballots as long as they were postmarked “on or before the date of the election.” The registrar must still receive votes within five business days of election day.
In defense of Mississippi’s law, the state’s solicitor general, Scott G. Stewart, countered that Congress had effectively legislated on the issue when it passed the Uniformed and Overseas Citizens Absentee Voting Act in 1986. The Act requires states and territories to allow members of the U.S. armed forces, their family members, and U.S. citizens living abroad to register to vote and cast absentee ballots in federal elections.
As Clement and U.S. Solicitor General D. John Sauer contend, Mississippi’s logic would stretch that context far beyond its original intent.
Article 1, Section 4 of the Constitution grants the States primary authority over election administration, including the “times, places, and manner of holding elections.” However, it also stipulates that Congress may “at any time by law make or alter such regulations.”
Congress, Sauer said, never intended to include voting after Election Day. Instead, he argued that early voting was acceptable because the process of voting was understood to be “perfected on Election Day,” when the ballot box closes.
The Supreme Court has previously ruled, in Foster v. Love (1997), that when state election law conflicts with a federal statute, it is void. In that case, the court found that a Louisiana law allowing residents to select congressional candidates before the federal election day “clearly violates” federal statutes.
At issue now in Watson v. Republican National Committee is whether mail-in absentee ballots received after election day meet the same criteria as ballots received so far in advance that to count them would render an election concluded before the federally mandated day.
Clement rejected the notion that the two were in any way similar, arguing instead that the country already has a “distinct history of early voting,” adding that the early voting is “permissible” because “Election Day is the date where the election is consummated.”
In 1845, Congress used that power to “establish a uniform time for holding elections for electors of President and Vice President.” In 1914, Congress established that the “day for the election” of representatives and senators would be concurrent with the choosing of the president and vice president.
Starting with the War of 1812, states such as Pennsylvania and New Jersey changed their laws to allow soldiers to vote by absentee ballot. As Clement argued, the practice became more widespread during the Civil War and into later conflicts, including the two World Wars.
By 1960, it was commonplace across the country to allow some form of absentee voting. In 1978, California became the first state to adopt “no-excuses” absentee ballots, allowing any registered voter to vote by absentee ballot. (RELATED: The Indefatigable California Vote Factory)
Rules for counting military and overseas ballots vary widely across the country.
Twenty-one states require ballots to be received by the close of polls on election day, and 29 states — plus Washington, D.C. — accept at least some ballots received after that deadline. Of those, 19 states and D.C. require ballots to be postmarked on or before election day and received within a set number of days afterward.
In 10 states, including Florida, North Carolina, Ohio, Pennsylvania, and Texas, ballots are accepted without a postmark as long as they arrive within a specific timeframe, and voters attest to having completed their ballots by election day.
When considering the stakes of election fraud and overall public confidence in the electoral process, it seems imprudent to rely on postmarks as the arbiter of truth.
While a postmark confirms “possession of the mailpiece on the date of the postmark’s Inscription,’ it does not mean that was the date the postal service “first accepted possession of the mailpiece,” according to the U.S. Postal Service.
In fact, the postal service has “long recommended as a common-sense measure” that mail-in voters send their ballots “at least one week before it must be received by their local election office,” or request a manual postmark to guarantee the postmark date matches the date the Postal Service first accepted the ballot.
Justices Brett Kavanaugh and Samuel Alito questioned the impact of laws like Mississippi’s on the “appearance of fraud” in elections, particularly because they incentivize losers to cry foul over late-arriving ballots. (RELATED: Ensuring Greater Trust in Mail-in Voting)
There’s also the question of where to draw the line. Illinois allows the collection of mail-in absentee ballots up to 14 days after election day. In Washington, residents have up to 21 days after a general election, while in New York, you get 13 days if postmarked by election day.
Stewart argued that Congress left the decision to set a deadline for ballot receipt to the states.
When asked by Justice Neil Gorsuch whether a state could continue receiving ballots “by any means and by any date up until the next Congress meets,” Stewart responded affirmatively, arguing that Congress declined to set a federal deadline for collecting ballots, making it a state-level decision.
Notably, Stewart clashed with Justice Gorsuch on the issue of recalls, with Gorsuch arguing that if Mississippi’s law allowed for recalls, it would be difficult to determine when an election is final. Stewart rejected the premise of the question, saying state law deems a ballot “final when cast,” rather than when “marked accepted” as Gorsuch stated.
Under Stewart’s interpretation, states could effectively allow recalls of early-voting ballots so long as the registrar has not received the ballot.
Justice Ketanji Brown Jackson defined the issue at hand as one regarding who ultimately decides when ballots must be received and whether Congress has already preempted states from making those decisions. Questions about where to draw the line, Jackson said, “are only problems to the extent that Congress thought they were problems.”
Federal lawmakers are already wrestling with when an election ends.
Congress is considering the Make Elections Great Again Act, which would require mail-in ballots to be received by the close of polls on election day. President Donald Trump has also made the Safeguard American Voter Eligibility Act a priority; however, both bills have yet to leave Committee.
The Supreme Court will likely issue its decision in late June or early July.
Absentee voters in Mississippi will be able to vote 45 days before election day this November.
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