I spent five years on the Federal Election Commission, served as general counsel to the Texas Secretary of State, and have over two decades of experience in election law. Throughout this time, I’ve come to realize that clarity is the most crucial aspect of election regulations.
On Monday, in the case of Watson v. Republican National Committee, the Supreme Court ruled otherwise. A majority of five justices determined that federal Election Day law does not prevent states from counting absentee ballots that arrive after Election Day, as long as they are postmarked by that date. This decision overturns a long-standing understanding: that conducting an “election” on a specific day means all ballots must be collected by that date.
Justice Alito, joined in dissent by Justices Thomas, Gorsuch, and Kavanaugh, rightly pointed out that the election doesn’t conclude just when the last vote is cast. It ends when election officials have the ballots, which Alito described as “a set of ballots” that reflect the voters’ collective decision. The majority seems to believe that an “election day” is marked as soon as a voter submits their ballot at the post office, a stance that may raise eyebrows among textualists.
This isn’t just a theoretical debate. Historically, from the nation’s founding until the late 20th century, collecting ballots on Election Day was standard practice in the U.S. Even during the Civil War, states scrambled to ensure soldiers could vote from distant battlefields, but absentee ballots were still required to arrive by Election Day. What’s the majority’s rationale? Perhaps they’ve simply overlooked the importance of adhering to that principle. It’s worth noting that the legal dictionary of the time defined “election” as “the act of casting and receiving a ballot.” The majority’s decision disregards this context.
The ruling hinges on the postmark, which supposedly indicates that ballots were mailed on Election Day. Yet, as of 2026, that assumption may not hold true. The United States Postal Service marks mail when it’s first processed, not necessarily when it’s dropped in the mailbox. Starting December 24, 2025, that postmark may reflect the date of processing, not the date the mail was sent. With the USPS’s current plan to consolidate processing facilities, mail could be marked days after it was actually sent.
What does this mean for voters? If someone drops their ballot in a mailbox on Election Day, but their local post office doesn’t process outgoing mail until the next day, their ballot might be postmarked by Election Day. Conversely, ballots mailed from a collection box on the same day could show a postmark a day or two later—the entire ruling is built on timestamps the USPS admits are unreliable.
There are alternatives, of course. Voters can go to a USPS retail counter to get a manual postmark or use Certified Mail to maintain proof of when their envelope was received. But expecting 160 million voters to navigate these procedures just to demonstrate they voted on time is unreasonable. It unfairly burdens rural voters, seniors, and those without easy access to post offices. The majority’s view simplifies the equation to “postmarked on election day” equals “mailed on election day,” a simplification that no longer stands.
From my perspective in election administration, what troubles me most is that this ruling has no clear limits. Justice Alito labeled this situation “Pandora’s Box,” and I can’t help but agree. Although the case dealt with a five-day grace period in Mississippi, the court didn’t base its reasoning on that timeframe. Washington State, for example, is already counting ballots that arrive 21 days after the election. What stops states from removing receipt deadlines entirely? What if they allowed party operatives to collect ballots on Election Day for future delivery? The majority hasn’t fully addressed the implications of allowing ballots to be collected while still in transit. Even if votes could be canceled the next day, who would explain that to county officials verifying results?
Let’s face it: this decision opens doors to issues. The Carter-Baker Commission found absentee voting to be the “number one source of potential voter fraud” in American elections. Although Justice Stevens isn’t viewed as conservative, he acknowledged the genuine risks involved. Imagine a tightly contested race where everyone knows the election’s outcome is close. Ballots could still come in for days or even weeks after the election. Those with ill intentions would know precisely how many votes they need. Justice Kavanaugh articulated it well: if absentee ballots arrive in droves after Election Day, the potential for election fraud claims could skyrocket. History has shown us similar scenarios—like the 1948 election results marred by fraud allegations. Even if no wrongdoing occurs, the perception of it can undermine public trust in democracy.
The ruling acknowledged that a national solution requiring different deadlines for ballot receipt must come through elected representatives. Fair enough. I’ll take their statement at face value.
President Trump described this ruling as a “tremendous loss” for voters’ rights and urged Congress to act swiftly. I think he’s right. There’s an urgent need for the SAVE America Act, which would enforce photo ID requirements, limit mail-in voting to certain circumstances, and restore the common-sense rule that ballots must be received by the close of polls on Election Day. A simplified set of rules can foster understanding and trust among Americans.
The House has taken action; now the Senate must do the same—quickly. After this ruling, every state legislature now knows it can extend ballot acceptance deadlines indefinitely and broaden mail-in voting procedures. The framers entrusted Congress with regulating election timing for a reason; they recognized that states might not be able to resist the allure of political biases. Four justices recognized this reality. The president sees it clearly. Now, it’s time for all 51 senators to comprehend the gravity of the situation.
