The Supreme Court showed an openness to blocking Mississippi’s law allowing mail-in ballots to be received and counted after Election Day — a ruling that could upend mail-in voting nationwide ahead of the midterms.
During Monday’s oral arguments for Watson v. the Republican National Committee, the conservative majority signaled concern about Mississippi’s law should it be permitted to stand, questioning ways the law could delay and muddle election results.
“Isn’t it the case that some states will count ballots that are received 21 days after Election Day? Is that OK?” Justice Samuel Alito asked Mississippi’s solicitor general, Scott Stewart.
Mississippi’s law requires mail-in ballots to be counted up to five days after Election Day as long as they are postmarked by the day of the election. The measure was adopted during the COVID-19 pandemic to provide additional flexibility for voters.
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The Republican National Committee, along with Mississippi’s Republican and Libertarian parties, argued in their suit that federal law establishing an Election Day makes the state’s five-day window illegal.
The counsel for Mississippi Secretary of State Michael Watson, the defendant in the case, has argued that Congress only has control over the date when voters make their choice, not when ballots arrive. The choice before the Supreme Court is whether federal law supersedes the state’s rights to regulate its election rules.
“We don’t have a whole lot to go on here. We have the phrase Election Day, and we have history,” Alito said during the oral arguments.
The stakes could be high. Many states allow for ballots postmarked on Election Day to be counted afterwards. Invalidating Mississippi’s law would thrust dozens of absentee ballot rules into question, the Mississippi Democratic Party has warned.
One Monday, the court appeared divided on partisan lines, with conservative justices expressing skepticism about the law.
Justices Clarence Thomas and Amy Coney Barrett wanted to know what made a ballot “final” or official.
Justice Brett Kavanaugh questioned the defendants on the implications of their arguments that blocking Mississippi’s law would hurt voter access.
“Would you say that the states that require receipt by Election Day are disenfranchising voters?” Kavanaugh posed.
Justice Neil Gorsuch, for his part, proposed a complicated hypothetical: What happens if a candidate calls for voters to recall their votes after his opponent is found to have participated “in an inappropriate sexual escapade”?
“In that hypothetical, did the election happen on Election Day? Oh, by the way, it swings the election,” Gorsuch asked.
“Let’s say there was a law prohibiting recall, how would it ever be enforced,” Gorsuch continued. “Because how is the state to know? And how is even a common carrier carrying an envelope to know whether that is a ballot that needs to be recalled, and who are you going to prosecute?”
Stewart replied that a solution to the issue would be requiring voters to sign an affidavit committing to not attempt to recall their vote.
The three liberal justices expressed interest in leaving the law in place, questioning the argument that history should play a role in the court’s decision.
“Congress couldn’t have conceived of the kind of early voting we have now, it couldn’t have conceived of a thousand other ways in which we administer elections now,” Justice Elena Kagan said.
Stewart, Mississippi’s solicitor general, responding to Alito, argued that the state was following the federal statutes.
“I think the best way to read it, your honor, is that by setting Election Day, the Congress set the final choice day, and that’s the key thing,” Stewart said. “What Congress was concerned about at the time was some states making final choices, say, a month before other states were making final choices, and the distortions, the fraud, the risks that that had. And when everybody’s making a final choice on the same day, even if some individual choices are made before, then you’re honoring the statutes.”
The Supreme Court announced in November that it would hear this case revolving around Mississippi’s mail-in ballots law. Following the announcement, Democrats in several states have voiced fears that a ruling against the law could lead to additional barriers to voting ahead of the midterms, particularly for rural voters, those overseas or in the military.
“Donald Trump and Republicans want to limit the rights of voters here in Mississippi and across the country because they know they’re facing defeat in the midterms,” Mikel J. Bolden, the executive director of the Mississippi Democratic Party, told NOTUS in a statement. When more eligible voters make their voices heard, Republicans lose.”
Democrats have warned of snowball effects, too: Marc Elias, a prominent Democratic attorney and chair for the firm defending the state, warned that a ruling against the state could empower the Trump administration to pursue additional legal challenges to voting.
“I’m here to tell you they are 100% going to come back and challenge early voting,” Elias told reporters ahead of the hearing. “What Donald Trump wants, and has said that he wants, is Election Day voting only, in person only. So doing away with the vote by mail is like the most convenient way for them to start, but it will not be where they end.”
Trump has shown particular ire toward mail-in voting, baselessly claiming that the expansion of mail-in voting during the height of the pandemic was the source of fraudulent voting in 2020, and part of the reason he lost reelection.
Now back in office, Trump has pushed Republicans to tighten restrictions on mail-in ballots. In February, the Republican-led House passed the SAVE America Act, which would prohibit universal mail-in voting, requiring eligible voters to apply for a ballot instead of automatically receiving one and also substantially limit those who would be eligible for mail-in ballots.
Trump has claimed he would not sign any legislation until the SAVE America Act passes the Senate, where Democrats stand firmly opposed to the legislation.
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