The U.S. Supreme Court is set to decide a case involving extended periods of time following Election Day for additional ballots to come in and be counted.
Republican National Committee, and justices will decide whether states can count mail-in ballots that are postmarked by Election Day but received in the days following.
The Republican National Committee (RNC) sued Mississippi Secretary of State Michael Watson, arguing that federal election statutes mandate ballots for federal office to be both cast and received on Election Day.
The RNC contends that federal laws enacted in 1845, defining a uniform, national Election Day, preempt any state “grace periods” for mail-in ballot receipt.
Mississippi allows absentee ballots to be counted if they are postmarked on or before Election Day and received within 5 business days
A federal district court initially sided with Mississippi, but the U. S. Court of Appeals for the Fifth Circuit ruled in favor of the RNC.
The U. S. Supreme Court granted a writ of certiorari and heard oral arguments in March.
A ruling invalidating post-Election Day receipt windows would disrupt election protocols in approximately 15 states that currently permit a grace period for timely mailed ballots.
This would force officials to adjust federal and local ballot counting procedures
That said, court watchers believe a majority of justices will side with the RNC.
The looming decision comes as Republicans agonize over California’s prolonged election cycle that has seen GOP candidates lose ground to Democrats as ballots continue to pour in up to seven days after last Tuesday’s primary.
Observers watching oral arguments in March expressed confidence that the Supreme Court will side with those seeking to get rid of grace periods, perhaps preserving them for those abroad,” said an op ed in the San Francisco Examiner
“Unless the ruling is narrowly tailored, that means California will need to abandon its grace period — potentially as soon as November,” the op-ed continued.
Amy Howe, writing for SCOTUSBlog in March shortly after arguments ended, appeared to agree.
After just over two hours of oral argument in Watson v
Republican National Committee, a majority of justices seemed to agree with the challengers – which included the Republican Party of Mississippi and the Libertarian Party of Mississippi – that the Mississippi law conflicts with federal laws that set the Tuesday after the first Monday in November as the ‘election day,’” she wrote.
Howe added:
Mississippi passed the law at the center of the case in 2020, in response to the COVID-19 pandemic.
Four years later, the Republican National Committee, the Mississippi Republican Party, a Mississippi voter, and a county election official went to court to challenge the law, as did the Libertarian Party of Mississippi in a separate lawsuit (which was later combined with the Republicans’ lawsuit)
They argued that Mississippi’s law clashed with a federal law, enacted by Congress in 1845, that establishes the Tuesday after the first Monday in November as “election day. ”
In 1872, Congress directed that congressional elections should occur on this day, as well.
A three judge panel of the U.S
Court of Appeals for the 5th Circuit agreed with the challengers that federal law requires all ballots to be received by Election Day.
After the full court of appeals – over a dissent by five judges – rejected the state’s petition to rehear the case, the state went to the Supreme Court, which agreed in November to weigh in.
Scott Stewart, the Solicitor General of Mississippi, informed the justices that states possess extensive authority over elections.
He argued that laws like Mississippi’s align with federal election laws, as voters finalize their choices by Election Day
Paul Clement, representing the challengers, countered that when Congress initially passed the law establishing the Tuesday after the first Monday in November as “Election Day,” the casting of ballots and the state’s receipt of ballots were “so inextricably intertwined” that “no one would have thought of one without the other. ”
