The U.S. Supreme Court is debating whether or not to strike down state laws allowing mail-in ballots to be received after Election Day.
Justices on the court heard arguments in Watson v. RNC, a case challenging Mississippi’s deadline for mail-in ballots to be received five days after an election as long as the ballot was postmarked by Election Day.
Some justices on the court appeared skeptical of Mississippi’s law and similar laws in other states. Fourteen states and the District of Columbia allow domestic mail-in ballots to be received after Election Day.
Justice Clarence Thomas questioned at what point a ballot decision can be considered finalized. He argued that filling out a ballot and handing it to someone who is not an election official is questionable.
Justice Amy Coney Barrett agreed with Thomas, and challenged the historical precedent of ballot receipt deadlines.
“There are lots of ways to make a final choice,” Barrett said. “Just because it’s always been done that way doesn’t mean it always has to be done that way.”
Justice Neil Gorsuch also appeared to agree. He posed a hypothetical where a candidate running for office calls on voters for the opposite candidate to revoke their mail-in ballots before they are counted after Election Day, when that candidate undergoes a serious scandal.
“Election Day is the day to conclude and consummate the election with a final selection,” Gorsuch said.
Scott Stewart, a lawyer representing Mississippi, said the requirement that a ballot be postmarked in order to count is a necessary factor to consider. However, Justice Samuel Alito pointed out that eight states do not require a postmark on mail-in ballots.
Alito appeared to call for federal clarity on the ballot receipt deadline.
“If I have nothing more to look at than the phrase ‘Election Day,’ I think this is the day in which everything is going to take place,” Alito said.
Some of the justices expressed disagreement about the strict Election Day deadline for a ballot to be received. Justice Ketanji Brown Jackson questioned whether Congress intended to set a hard deadline for ballot receipt when it designated a federal Election Day.
“The scantness of Election Day in the federal statutes is a point in your favor to draw the various lines that might arise in this circumstance,” Jackson told Stewart.
The justices pointed to examples from the Civil War in which federal statutes appeared to allow the acceptance of ballots from service members not in their home jurisdictions. Paul Clement, a lawyer for the Republican National Committee, argued only five states engaged in this activity, and each state ensured that ballots were received by Election Day.
He pointed to current laws, such as the Uniformed and Overseas Citizens Voting Act, that require ballots to be sent to military and overseas citizens at least 45 days before an election to ensure timely receipt.
“One thing that didn’t vary at all is ballots have to be received by Election Day,” Clement said.
Justice Brett Kavanaugh pointed to the Purcell Principle, a standard that courts seek to avoid altering election rules close to an election date, especially considering the upcoming midterm elections.
Clement said Purcell would not be affected because states would have enough time to adjust their processes by September if a decision is issued in June.
Ally Triolo, the RNC election integrity communications director, told The Center Square that a majority of Americans support ballots being received by Election Day. She said 83% of voters across the country agree, and 78% said it makes elections more secure, citing a recent poll from CRC research for Honest Elections Project.
“Watson v. RNC is about a simple principle: ballots must be received by Election Day," Triolo said. "This prevents elections from dragging on for days and weeks after voters have cast their ballots, causing confusion and undermining our elections."
Jason Snead, director of Honest Elections Project, told The Center Square late receipt deadlines violate federal law and can cause uncertainty in election outcomes.
"Only a ruling ending late ballots can uphold the rule of law and preserve public trust in elections," Snead said.
Justices on the court will likely decide Watson v. RNC by June, possibly July at the latest.
