Alaska state officials may have released the greatest sigh of relief on Monday when the U.S. Supreme Court, in a 5-4 decision, ruled that federal election laws do not override a state law that permits counting ballots postmarked by election day but received up to five days later.
The state law at issue in the high court was actually a Mississippi law. But Alaska’s relief stems from the fact, as noted in its brief filed to support Mississippi, that nearly all Alaskan voters vote by mail. At least 18 other states and territories have similar laws permitting counting of late-arriving ballots.
The decision in Watson v. Republican National Committee is a defeat for Republicans and President Donald Trump who have tried to eliminate or restrict mail-in ballots because, they contend, despite a lack of evidence, that those ballots are rife with fraud.
Justice Amy Coney Barrett led the majority in an unusual lineup that included Chief Justice John Roberts Jr. and liberal Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. Justice Samuel Alito wrote the dissenting opinion, which was joined by Justices Clarence Thomas, Neil Gorsuch and, in part, Brett Kavanaugh.
In her opinion, Barrett explained that the “defining element” of an “election,” the term used in three federal statutes, has always been the electorate’s choice of a candidate.
“That occurs so long as election day is the deadline for individuals to vote– as it is in Mississippi,” she wrote. “But the [federal] Election-Day statutes do not set a deadline for ballot receipt, so they do not prevent Mississippi from counting ballots postmarked before election day yet received afterward.”
Barrett noted that the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) reinforced her view that while federal law dictates when ballots must be cast, “state law dictates when they must be received.” UOCAVA permits the late receival of overseas military and absentee ballots.
In his dissent, Alito agreed that the defining element of an election is the electorate’s choice of a candidate, but that’s where his agreement ended. He and Barrett sparred over history, text, and court precedents.
“The acceptance of these late-arriving ballots effectively postpones the date on which the electorate’s choice is made, and federal law precludes that postponement,” he wrote. “Election day is a specified date, not a span of multiple days.”
Alito said that “two centuries of historical practice” reinforce his arguments. “From this country’s founding until the late 20th century, election-day ballot collection was the near-uniform practice, with only a few late-arriving exceptions.”
He also warned that the majority’s decision “spawns a slurry of troubling election-law questions and risks further undermining Americans’ confidence in election integrity.
But Barrett countered, “as we have said time and again, however, policy arguments are properly directed to legislatures, not courts. The question today is not whether requiring ballots to be received by election day is a good or bad idea; the question is whether the idea has made its way into the United States Code.”
Congress is currently enmeshed in another election-related battle over the so called SAVE Act that would require voter ID and other steps before accessing the right to vote. Mail-in ballot restrictions were at one point also part of the legislation.
The justices have one final election-related case to decide. In National Republican Senatorial Campaign v. Federal Election Commission, the campaign is challenging limits on spending by political parties in coordination with candidates.
On Tuesday, the justices will issue the remaining decisions of the term, including Trump v. Barbara, the Trump Administration’s challenge to the Constitution’s birthright citizenship clause.
Marcia Coyle is a regular contributor to Constitution Daily. She was the Supreme Court Correspondent for The National Law Journal and PBS NewsHour who has covered the Supreme Court for more than three decades.
