SCOTUS Sides with Post-Election Mail-in Ballots
The United States Supreme Court’s 5-4 ruling in Watson v Republican National Committee, allowing mail-in ballots to be counted after election day in at least 14 if not more states, is only likely to erode Americans’ trust in election results.
That’s EPEC Team’s initial response to the opinion that agreed with Mississippi’s (Covid-era) statute, which allows ballots postmarked on Election Day to be received five days later. Other states allow ballots to arrive for even longer stretches of time, such as California, which has become notorious for questionable election results.
The sole question in the case was whether counting ballots postmarked by election day, “but received up to five days later, violates the federal election-day statutes,” wrote Associate Justice Amy Coney Barrett. The majority opinion, including Chief Justice John Roberts, said it did not.
Barrett’s lengthy review of election statutes included Civil War-era absentee balloting practices to accommodate soldiers in the field. The majority opinion also leaned in on the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) in its ruling.
“UOCAVA confirms that while Congress has set the date by which absentee ballots must be cast, States have the power to set the date by which they must be received,” Barrett wrote.
She noted that roughly 30 states count military and overseas voters’ absentee ballots that arrive after election day. She did not observe that many states allow UOCAVA ballots after the deadline to receive them, under varying interpretations of the statute.
Since the ruling is a narrow interpretation of a federal election statute, not grounded in constitutional challenges, other cases could find their way before the court.
Given the ruling’s somewhat marginal examples to support the decision, it’s difficult to discern what limiting principles are left on post-Election Day mail-in ballots, especially in states that allow them to trickle in for weeks after Election Day. It also leaves open other challenges about what constitutes a post mark these days.
The decision solidifies the Postal Service as an actor in deciding elections at a time when it no longer confirms when handled mail is actually post-marked.
Anyone who has worked with a post-marking device in a mail room knows that post marks can be back-dated. The decision raises the stakes for the U.S.P.S. to confirm whether a mail-in ballot has been properly postmarked on or by election day.
“The ruling has profound implications for U.S. election integrity, trusted results, and voter-list accuracy,” said Jon Lareau, Executive Director of EPEC, in a statement.
Justice Samuel Alito, leading the dissent, wrote that the decision “leaves open opportunities for voter fraud that may further undermine Americans’ faith in the integrity of this country’s elections. Diverse sources have recognized that mail-in ballots increase the potential for fraud.”
The ruling is likely to create even more pressure on the Senate to pass the SAVE America Act, which allows mail-in ballots to those who are not able to vote in person. The bill includes provisions for mail-in ballots that protect overseas voters under UOCAVA.
Election security law firm Restoring Integrity and Trust in Elections (RITE) had urged the court to hold that federal law requires mail ballots to be received by Election Day. In a statement, the firm called on remaining states to amend their laws to set Election Day as a return deadline.
“This is something the American people broadly support, and will promote confidence in our elections process and ensure timely election results,” RITE added.
Tom Fitton of Judicial Watch, whose original litigation helped bring the case to the Supreme Court, said the decision “threatens to make a mess for our nation’s already stressed federal elections.”
Justice Alito’s dissent added:
“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. It opens up and fails to resolve a host of questions for state election officials and courts. And it creates a serious risk of further undermining public confidence in our elections and our system of self-government.”
Virginia’s Department of Elections generally has allowed mail-in ballots postmarked by Election Day to be received by noon on the following Friday (with an extension to Monday if Friday is a holiday). #
In other decisions coming out of the Supreme Court, it announced it would take up a challenge to policies that allow noncitizens to stay on voter rolls prior to an election. A controversial interpretation of the National Voter Registration Act’s 90-day “quiet period” rule to prohibit the removal of illegal registrations (never eligible in the first place), has also spread to Virginia. #
