The Supreme Court appeared uneasy on Monday with the implications of Mississippi’s late-arriving mail ballot law — and how defining “Election Day” by when voters make their decisions, rather than by when the state receives their ballots, could create a mess of other issues.
The high court heard arguments in Watson v. Republican National Committee, in which the justices will decide if federal law setting Election Day should preempt a Mississippi law that allows mail ballots postmarked by Election Day to be received up to five days afterward. The RNC has argued that federal law bars the state law, because Election Day serves as the deadline for officials to receive ballots, while Mississippi officials argue instead that Election Day is the deadline for voters to cast their ballots.
Mississippi Solicitor General Scott Stewart was grilled by several justices early into Monday morning’s oral arguments over the implications of the state’s argument about what Election Day means.
Justice Clarence Thomas challenged the state by asking whether, under its definition of Election Day, a voter’s ballot would count if he filled it out by Election Day but handed it to a neighbor rather than mailing it. Stewart answered that while the voter would have made a choice by Election Day, that choice would not be made official unless the voter mailed the ballot that day.
Justice Neil Gorsuch asked various sharp questions of Stewart, appearing deeply skeptical of Mississippi’s argument. Gorsuch began his questioning by asking why mailing a ballot is the only permissible way to verify someone voted by Election Day under Mississippi’s argument. He questioned why a notary public would not be able to verify a ballot was filled out on Election Day and have the ballot count, even if it is sent to election officials by any method after Election Day, under Mississippi’s definition of Election Day as the deadline for voters to choose candidates, but not for the state to receive ballots.
“How about a time-stamp video showing that I voted on Election Day? Here I am filling out my ballot, and then my brother or maybe some aggregator of ballots brings it in a week or three later, that’s got to be OK too, doesn’t it?” Gorsuch asked.
Stewart responded that it would not be the same as submitting the ballot to the state, which he considered mailing the ballot by Election Day.
Gorsuch also questioned how a voter casting their ballot on Election Day and mailing it that day could be considered as having taken a final action, given that the voter could call the mail service, such as the U.S. Postal Service or FedEx, and recall their mailed ballot before it reaches election officials. He used the hypothetical of a candidate scandal surfacing one day after Election Day, prompting a voter to change their mind about having voted by mail for the candidate the previous day and recalling the ballot before it is counted.
Stewart denied that voters would be allowed to recall their mail ballots, but Gorsuch pushed back by asking how the state could ensure that does not happen, and how the state would be able to go after people who try to recall their mail votes.
Justice Samuel Alito also voiced concern over how there appears to be no limit on how late a state can accept late ballots, as long as they were cast by Election Day, under Mississippi’s definition of election deadlines under federal law.
The RNC was also grilled on how its view of Election Day could affect early voting, which is available in more states than the 14 that have late-arriving ballot laws. Paul Clement, the lawyer arguing for the RNC, dismissed concerns that capping ballot receipt on Election Day would affect early voting.
SUPREME COURT WILL DEBATE MEANING OF ‘ELECTION DAY’ IN LATE MAIL BALLOTS CASE
The Supreme Court is expected to rule in the pivotal election case by the end of June, months ahead of the midterm elections in November. Justice Brett Kavanaugh asked Clement whether a June decision would cause problems for the November elections, to which the RNC lawyer said there would be plenty of time to adjust deadlines because it would affect only the general election, not primary elections.
During the current term, the justices have heard several election-related cases, including on candidates’ ability to sue over election laws, campaign finance laws, and race-based congressional redistricting.