The US supreme court sided against national Republicans and Donald Trump’s administration to allow mail-in ballots that arrive after election day to be counted, upholding the law in more than a dozen states.
The Republican National Committee (RNC) had challenged a Mississippi state law allowing mailed ballots to be counted if they arrive within five business days of election day, so long as they were postmarked by election day.
“Nothing in the federal election-day statutes requires ballots to be received by election day,” the conservative justice Amy Coney Barrett wrote in the 5-4 opinion.
Barrett joined Chief Justice John Roberts and the three liberal justices – Sonya Sotomayor, Elena Kagan and Katanji Brown Jackson – in delivering the majority opinion. Justices Samuel Alito wrote a dissenting opinion, which Clarence Thomas and Neil Gorush joined, and John Kavanaugh joined in part.
The decision to side against the president and Republican party is seen as a surprise. It will maintain state laws that allow ballots postmarked by election day to be counted later, affirming the role of states in setting election laws.
Fourteen states, Washington DC and three US territories have similar laws that allow for late-arriving ballots to be counted.
It comes as other supreme court decisions this term have upended election processes. The court decided earlier this term to allow Louisiana to effectively dismantle the Voting Rights Act, depriving Black voters of their ability to elect members of Congress of their choosing and setting off a frenzy of gerrymandering across the south.
Some states, including Mississippi, changed their laws in 2020, during the Covid-19 pandemic. Mississippi, a red state, defended its ability to set its own procedures for elections against the challenge from the Republican party, which argued that the grace period after election day violates federal laws that set election day for the first Tuesday of November.
Trump and some Republicans continually cast doubt on mail voting, a process used by millions in both parties in most states to cast ballots more conveniently. There are checks and balances in place to ensure mailed ballots are valid, including signature verification.
Trump has called for an end to mail voting, though he does not have the power to actually end it himself. Election processes in the US are run by local jurisdictions based on local and state laws and policies.
In March, however, the president cast a mail-in ballot himself. Records show Trump voted by mail in the special election for House district 87, which encompasses his Mar-a-Lago golf club, according to the Palm Beach county supervisor of elections website.
The Republicans bringing the lawsuit contended that the word “election” in federal statutes should mean both when a ballot is cast and when it is received, therefore making it so all ballots counted needed to be received on election day.
During oral arguments in Watson v Republican National Committee in March, the supreme court’s conservative justices laid out hypothetical situations to probe the limits of counting ballots after election day, and nodded to the potential for election fraud.
Several justices also questioned whether a voter could recall their ballot through the mail and change their vote – a hypothetical practice that Mississippi solicitor general Scott G Stewart said does not happen, claiming “nobody cited a single example in history”.
In the decision Monday, Barrett wrote that “plaintiffs’ policy arguments about election integrity and voter confidence are properly directed to legislatures, not courts … and regardless, plaintiffs’ definition of ‘election’ would do little to address the concerns they identify”.
The plaintiffs had also argued that historical precedent and practice underscored their argument that ballots should be received by election day in order to be counted. But, Barrett wrote, these historical examples did not tie directly into modern statutes.
“At bottom, plaintiffs’ theory is that because 19th-century election-day statutes govern here, so too do 19th-century voting practices,” she wrote. “But statutes do not “tra[p] in amber” every contemporary practice on the same subject matter.”
During the oral arguments, liberal justices pointed to federal laws that allow for grace periods, while noting that a ruling here could also implicate early voting, another common practice.
“You’re basically saying there are two things that have to happen, and they have to happen on election day, and it’s the casting of the vote and the receipt of the vote,” Justice Elena Kagan told Paul D Clement, who is arguing on behalf of the Libertarian party of Mississippi.
The RNC lost its initial case in district court, then won in the fifth circuit court of appeals. In its brief to the supreme court, Mississippi argued that the appellate court’s decision was “wrong”.
A host of groups representing voting rights advocates, military voters and overseas voters filed to support Mississippi’s position in the case, saying that a grace period allows voters with unique burdens to have their ballots counted.
In a dissenting opinion, Alito wrote that election day is set for the second Tuesday of November, and all voting must commence by that day. Allowing ballots to arrive after election day violates that, he argued.
“Election day is a specified date, not a span of multiple days,” Alito wrote. “The election-day statutes require that federal elections occur on that date. Under the challenged Mississippi law, however, the collection of ballots continues for five more days, and therefore the ‘election’ is not held until the end of that period.”
