Supreme Court Poised to Deliver Major Victory for Election Integrity
The Supreme Court appears likely to hand a significant victory to election integrity advocates by striking down a Mississippi law that allows for counting mail-in ballots nearly a week after Election Day. The decision could effectively nullify other similar state laws and eliminate a glaring threat to election security.
Late last month, the Supreme Court heard oral arguments in Watson v. Republican National Committee, a case concerning Mississippi’s COVID-era law that allows for mail-in ballots to count as long as they are postmarked by Election Day and received by election officials up to five days after Election Day.
The state enacted the law to accommodate voters who were concerned about leaving their homes in 2020 due to fear of contracting COVID – just one of many states which enacted similar measures. However, the rampant abuse of mail-in ballots and election malfeasance has raised concerns that the practice is corrupting election outcomes.
President Donald Trump has made reforms to mail-in voting a pillar of his election integrity agenda, going so far as to sign an executive order requiring the Postal Service to only mail out ballots to verified citizens. That order has already been challenged in court by more than 20 states, highlighting the deep partisan divide on mail-in voting and voter verification.
During the hearing, the Court’s conservative majority appeared sympathetic to the argument from the plaintiffs challenging the Mississippi law – namely the state Republican Party and Libertarian Party as well as the Republican National Committee. The case ended up at the Supreme Court after the Fifth Circuit Court of Appeals ruled in favor of the RNC and against Mississippi’s “grace period.”
The case is unusual in that conservative groups are challenging a law in a deep red state. The primary defendant in the case, Mississippi Secretary of State Michael Watson, is a Republican. In his official capacity, he administers Mississippi’s election laws – including the mail-in ballot rules being challenged.
The RNC argument hinges on the fact that federal law fixes Election Day as the first Tuesday after the first Monday of November. This has been set in stone since 1845, when Congress passed the Presidential Election Day Act.
According to the RNC, this means all ballots must be received by authorities by the end of Election Day and no later in order to count. Notably, this case does not appear to affect military voters, who are governed by a different federal voting law.
An exchange between Justice Clarence Thomas and Mississippi Solicitor General Scott Stewart, an attorney for the defendants, over when a ballot choice is considered “final” highlighted the central issue in the case. Attorneys for Mississippi argued that a ballot is final when it is placed in the mail.
But other justices blew a hole in this argument by asking if a ballot could be recalled by a voter. Justice Neil Gorsuch posed a hypothetical about late breaking news that tarnishes a candidate’s image, oftentimes called an “October surprise,” after which a voter may wish to recall his ballot.
Gorsuch then caught Stewart flatfooted and apparently ignorant of Mississippi’s laws by asking if a voter could ask FedEx, UPS, or the Postal Service to return his ballot so he could change his vote.
Stewart struggled to answer this question, ultimately stating that his state does not allow a ballot to be recalled. But while Mississippi law does not provide any mechanism for voters to recall or change a ballot once it has been cast, Gorsuch pressed the state’s attorney on whether that prohibition is explicitly stated in statute or simply implied.
Gorsuch’s point was that since the law does not clearly spell out when a ballot becomes “final,” it raises questions about whether a voter’s choice is complete upon mailing or only once it is received and accepted by election officials.
Stewart acknowledged that, in practice, Mississippi does not allow ballots to be recalled. But Gorsuch’s line of questioning suggested that the statutory framework leaves some ambiguity about when a vote is definitively cast – an ambiguity that goes to the heart of the case.
In short, if a ballot is not “final” until it is physically received by election officials, then it must be received by Election Day in order to comply with the law. The state argues that a ballot is “final” once it is mailed. But as the justices forced the defendants to admit, if a ballot can be recalled after it is mailed, then it is, by definition, not final. With those two conditions established, the state’s case falls apart.
This exchange prompted liberal Justice Sonia Sotomayor to step in to try to save Stewart, as the New York Post reported. The three liberal justices were generally sympathetic to Mississippi’s case.
During a different exchange, Gorsuch asked about a time-stamped video or a notary and if that could qualify as proof of a ballot being received on Election Day. Stewart again struggled through this question, forcing Sotomayor to interject again. Justice Samuel Alito responded by subtly calling out his liberal colleague, telling Stewart, “Well, Justice Sotomayor is asking you what I think she intends to be a friendly question.”
Yet despite the best efforts of Justice Sotomayor and her liberal colleagues to rescue Mississippi’s law, it appears that the state will lose its case, according to both conservative news sources and liberal outlets such as CNN, SCOTUSblog and the New York Times.
Other states that allow ballots to be counted days after Election Day could subsequently have their laws overturned as well. A final ruling is expected sometime in June.
