The Supreme Court ruled Monday that states are free to count ballots that are cast on time but aren’t received until after Election Day, brushing aside complaints over lengthy vote-counts and growing distrust of election results.
The justices, in a 5-4 decision, said it’s a matter of federal law, and as of now Congress hasn’t forbidden the states from counting late-arriving ballots. So they are free to do so.
At issue was whether the federal law, when it says Election Day, envisions a single day of voting or whether it countenanced what has become election season, with votes cast months in advance and counted weeks afterward.
Justice Amy Coney Barrett, writing for the majority, said election season is legal under the law as it exists right now.
She said federal law treats elections as the process of choosing, and while it defines when ballots must be cast, states get to define when they can be received.
“The election-day statutes say nothing about ballot receipt, and we cannot add to the words Congress chose,” the Trump appointee wrote, joined by Chief Justice John G. Roberts Jr. and the court’s three Democratic appointees — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.
The case came from Mississippi, where state law allowed ballots to be cast and postmarked by Election Day, then be counted as long as they were received no later than five days “after the election.”
Justice Samuel A. Alito Jr. led the dissent, writing that the court was opening the door to fraud — “bad actors seeking to stuff ballot boxes when early election results suggest a tight race” — and upending the idea of a single Election Day.
“Today’s decision is inconsistent with the terms of the election-day statutes, contemporary election-law principles, two centuries of historical practice, and the case law on the question presented,” wrote Justice Alito, a George W Bush appointee. “And it creates a serious risk of further undermining public confidence in our elections and our system of self-government.”
Justices Clarence Thomas, Neil M. Gorsuch and Brett M. Kavanaugh joined in Justice Alito’s dissent.
At the country’s founding, voting was done in-person, in public, and on whatever day states determined.
Federal law would eventually set a single day for elections to national office, and by the late 19th century voting would retreat into the booth, behind the curtain.
Exceptions for military voters casting ballots early, and from afar, have existed as far back as the Civil War, but in recent decades have expanded to offer average Americans more opportunity to vote.
The coronavirus pandemic then saw a new explosion of absentee and mail voting — and Mississippi was among them.
Roughly 30 states now allow at least some mailed ballots to be counted even if they are received after Election Day.
Washington allows ballots to be counted up to 21 days after Election Day, and eight states allow ballots to arrive without postmarks.
Justice Alito ticked off the issues with that: It’s tougher to verify identities of mailed ballots, there’s more chance for manipulation of voters and the chain of custody of ballots becomes muddied.
Justice Barrett countered that if Congress is worried about election fraud, it can change the law.
The case had seen the two major parties square off, with the Republican National Committee leading the challenge to Mississippi’s law and the Democratic National Committee defending it.
“Trump and Republicans are attacking our elections and trying to rig the system in their favor because they know the American people are ready to reject their chaos and corruption this November.,” DNC Chair Ken Martin said in the wake of the decision.
But Jason Snead, executive director of Honest Elections Project, said the ruling missed the mark.
“Federal law is clear: all ballots must be received by Election Day to be counted. The court missed a major opportunity to reinforce election integrity and instead sides with California-style chaos,” Mr. Snead said.
That was a reference to California’s reliance on mailed ballots and its penchant for having results on Election Day — often favorable to the GOP — shift toward Democrats as the counting stretches days after the election.
The ruling will likely increase President Trump’s demand that Congress approve his Safeguard American Voter Eligibility Act, or SAVE America Act. At its core the bill would require voters to prove citizenship before being allowed to register to vote.
Mr. Trump has also proposed add-ons, such as restricting transgender women’s ability to participate in women’s sports leagues.
Even as it cleared the mail-in voting issue, the Supreme Court on Monday invited another election battle, saying it would hear a case involving Arizona’s law requiring proof of citizenship when registering people to vote.
Opponents said that while Arizona can require proof for state elections, federal law doesn’t allow for those checks for voters in national elections.
The 9th U.S. Circuit Court of Appeals agreed, and has blocked the state’s law.
The Republican National Committee appealed to the justices, who have agreed to take the case.
Oral arguments will take place sometime next term, which begins in October.
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