The Supreme Court seems inclined to restrict states’ capacity to count mail-in ballots that arrive after Election Day. Several justices expressed concerns that counting these late ballots might create complications, asking who could submit them and how to manage perceptions of potential fraud.
“When will we know if the choice is final?” Justice Clarence Thomas inquired of Mississippi Attorney General Scott Stewart. In Mississippi, absentee mail-in ballots can be accepted up to five days post-Election Day. Both the Trump administration and the Republican National Committee (RNC) contend that federal law mandates November 8 as the demarcation for accepting ballots.
While Mississippi law requires ballots to be postmarked by Election Day, justices noted that this could lead to scenarios where relatives or party officials collect ballots instead of relying solely on the postal service. Justice Neil Gorsuch pointed out that voters might even attempt to retract ballots shortly before they reach election officials, possibly affecting the election outcome at the last minute.
“If history has taught us anything…once something is permitted, it will likely happen,” Gorsuch remarked.
Mr. Stewart implied that enforcing the Election Day cutoff wouldn’t disenfranchise voters, to which Justice Brett Kavanaugh posed the question of how the “appearance” of fraud should influence decision-making.
“Imagine waking up the day after an election to find the apparent winner has lost because of delayed ballots—allegations of fraud might explode,” he noted.
Kavanaugh further questioned if considering the appearance of fraud makes sense when it comes to aligning legal text with historical precedent.
A survey conducted by the Honest Elections Project revealed that 83% of prospective voters believe mail-in ballots should not be accepted after Election Day. Meanwhile, Democratic leaders support mail-in voting, and legal challenges to restrictions have been ongoing since a significant percentage of Democrats opted for mail-in voting during the 2020 presidential election.
Justice Samuel Alito mentioned that many significant occasions share the title “day,” highlighting that Election Day is one such “special day.” “I think today is the day it all takes place,” he mused, probing how this term has been interpreted over different historical periods.
Mike Hurst, legal counsel for the RNC, contradicted Judge Jackson’s assertion that decisions on late mail-in ballots fall under Congress’s and states’ jurisdiction rather than the courts’. He asked rhetorically, “How many times does Congress need to clarify this?”
Back in 1845, Congress established the federal election date due to concerns about fraud arising from differing voting days across states. Some argue that there’s no historical precedent necessitating ballots to be received by Election Day, though many states have adopted this as sound policy. Paul Clement defended the RNC’s stance, noting that historical efforts were made during the Civil War to ensure soldiers’ ballots were archived by Election Day.
Justices Sonia Sotomayor and Ketanji Brown Jackson stressed that the question of late mail-in ballots should be directed to Congress, not the courts. Jackson emphasized that Congress must ensure ballots are received on Election Day.
President Trump is concentrating on the Save America Act, but it faces challenges in the Senate, particularly from figures like Senator Lisa Murkowski of Alaska. Murkowski has warned against modifying or weakening the filibuster to expedite the bill’s passage.
On Sunday night, Trump stated he would not compromise with Democrats on funding for the Department of Homeland Security unless they vote in favor of the Save America Act. Moreover, the RNC has asked the Supreme Court to consider a case regarding undated or misdated mail-in ballots.
