Supreme Court Lets States Accept Votes After Election Day

T he Supreme Court this morning, in Watson v. Republican National Committee, ruled that states are not barred by federal law from counting ballots that arrive after Election Day. The Court’s 5–4 opinion, written by Justice Amy Coney Barrett, upheld a Mississippi law allowing ballots to be counted if they arrived five days after the election. The law’s challengers argued that the federal Election Day statutes require the election to be completed no later than the day set by Congress for the election. The decision is a win for federalism, and its sweep is narrow, but it is nonetheless a loss for honest elections.

Barrett was joined by Chief Justice John Roberts and the three liberals. Looking closely at how federal law handles military and other absentee ballots, the Court concluded, “the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), confirms that while federal law dictates when ballots must be cast, state law dictates when they must be received” (emphasis added). Justice Samuel Alito’s opinion for the four dissenting justices emphasized the statutory definition of when the election takes place: “If ballots received after election day are added to the set of ballots that dictate the election’s outcome, the electorate’s choice does not occur on election day, and the federal election-day statutes are violated.”

Today, shambolic election systems in some states — especially California — count millions of votes after Election Day, many of them arriving and possibly cast after the election. What is especially egregious in the California system is that slow counting and late arrivals are paired with a system of “curing” errors to ballots by contacting the voters again that allow activists to decide where to deploy their resources based on how many votes they need. Such aspects of the California system, however, were not at issue in the challenge to the Mississippi law, which focused narrowly on when the ballots arrive. Significantly, Mississippi’s law requires ballots to be postmarked on or before Election Day. In fact, because it was raised too late in the case, the Court declined to rule on the validity of Mississippi’s deadline as it applies to voters who choose to recall ballots from the mail.

Alito warned that the decision “risks further undermining Americans’ confidence in election integrity,” but Barrett rejoined that this was a question for legislatures, not the Court. Notably, nothing in the decision would prevent Mississippi or other states from changing their laws — or prevent Congress from changing federal law. As Barrett observed, “The Constitution’s Elections Clause empowers state legislatures to ‘prescrib[e]’ the ‘Times, Places and Manner of holding’ congressional elections,” but “Congress may override most of these choices. . . . As Alexander Hamilton put it [in Federalist No. 59], the Constitution lodges power over congressional elections in state legislatures ‘primarily’ and in Congress ‘ultimately’” (quotation and citation omitted).

Text and History

Barrett noted that Congress had gradually narrowed the window over time from elections that were originally held over a monthlong period, in part in response to concerns that voters could travel to different states to vote more than once. (Another major impetus, especially in presidential elections, was the debut of the telegraph in 1844, which prompted Congress to mandate a national presidential election day the following year so that results would not be reported from some states before others voted.) By 1872, congressional and presidential elections all had a single, federal election day.

Until the rise of absentee voting with military ballots in the Civil War, of course, voting was usually done in person; only in the late 19th century did America adopt the “Australian” secret ballot. Notably, states are still permitted to allow extended early voting, or even to hold their elections before Election Day (Maine did this well into the 1950s). A single, statutory election day is a deadline.

The Court’s reasoning leaves room for challenges more specifically focused on ballots that arrive without proof that the vote was cast on or before Election Day:

The defining element of an “election” — the term used in all three federal statutes — has always been the electorate’s choice of candidate. . . . Federal law dictates when ballots must be cast. . . . By setting the day for the “election,” these statutes set the day when the electorate must make its choice. . . . The electorate’s choice is made when voting is complete, not when ballots are received. [Citations omitted.]

The Court drew support from how the Constitution discusses the system for the Electoral College to vote:

The Constitution requires the “Day on which [the electors] shall give their Votes” to be “the same throughout the United States.” . . . But it says nothing about the day for receipt, and, of course, 18th-century modes of transmission did not offer same-day delivery. The Constitution therefore envisions a system in which receipt is necessarily divorced from voting, and it sets the crucial, uniform day as the day of voting, leaving receipt to happen down the line. The federal election-day statutes follow the same pattern: They set when the people “shall give their Votes,” . . . but leave open when those votes must be received. [Citations omitted.]

Barrett reached for the most recent revisions to election law as well:

In 2022, Congress inserted the phrase “election day” into that statute and marked that day as a specific Tuesday. . . . It then created an exception: When States “modify the period of voting” in response to certain force majeure events, the term “election day” shall “include the modified period of voting.” . . . That Congress defined “election day” with reference to “voting” indicates that “voting” is the act governed by the statute. [Quotations and citations omitted; emphasis the Court’s.]

“In any event,” added Barrett, “we do not know who won when all ballots are received. Many other acts must occur first: Voter qualifications must be adjudicated, ballots authenticated, and votes counted. . . . Plaintiffs have no statutory basis for making ballot receipt the magic moment.”

Alito argued that, because the law designates a single day to complete the election, “the critical act occurs on election day: the completion of the collection of the ballots that embody the electorate’s collective choice. That is what took place when all voting was done in person, and compliance with the election-day statutes demands that the same occur in a modern election.” But in the Court’s view, appeals to traditional voting practices prove too much: This would require us to conclude that “because we are governed by 19th-century election-day laws, we are also governed by 19th-century voting practices. Carried to its logical conclusion, this theory would call into question the way modern elections work.”

Alito concluded by warning that the failure to set a single day for receipt of ballots “opens Pandora’s box” by raising numerous other questions about what is and isn’t allowed in determining that late-arriving ballots were “cast” by Election Day, and warned more broadly of the potential for fraud in absentee voting, citing multiple examples (by no means an exhaustive list) of courts in North Carolina, Florida, and California throwing out elections because of absentee ballot fraud:

When someone votes by mail, it is harder for officials to verify the identity of the person requesting and completing the ballot. Mail voting also presents a greater opportunity for voter manipulation, a more vulnerable chain of ballot custody, and a diminished ability to detect improprieties in real time. . . . Allowing absentee ballots to pour in over the days and weeks after election day, by which point preliminary election returns are being publicly reported, creates greater opportunity for fraud and risks further undermining the public’s confidence in election integrity. . . .

Suppose that the outcome in a close Presidential election hangs on the final vote in a State that allows officials to count mail-in ballots received up until two days before its Presidential electors must meet to submit their votes. And suppose that, when all the ballots cast in person are counted by the morning after the election, one of the candidates is ahead by 15,000 votes. As the mail-in ballots arrive and are counted, that lead alternatingly dwindles and swells. By Thanksgiving, the lead of the candidate who has been ahead since election day dips to just 1,500 votes. This figure holds until a few days before the State’s electors need to vote, when one last tranche of mail-in ballots puts the opposing candidate in the lead by, say, 87 votes. It is not pleasant to imagine what this course of events would mean for popular faith in the integrity of that election and of our electoral process in general. [Footnotes omitted.]

Alito doesn’t have to name which state he’s talking about.

This was the second Election Day case of the term, but the first only resolved who can file suit. The Court ruled, earlier this term, in Bost v. Illinois State Bd. of Elections, that candidates can sue to challenge laws that permit ballots arriving after Election Day to be counted, on the grounds that extending the length of the election injures them. The questions left open by Watson practically guarantee that this won’t be the last such lawsuit.