Supreme Court Signals Divide on Election-Day Ballot Deadline (1)

The US Supreme Court signaled a divide over Republican calls to require mail-in ballots to arrive by Election Day, with key justices voicing concern about the impact the case might have on the practice of early voting.

In a hearing that lasted more than two hours Monday, the court grappled with a Mississippi law that allows mail-in ballots to be counted as long as they arrive within five business days of Election Day. A ruling toppling the measure, which Republicans say is incompatible with federal law, would upend similar grace periods in as many as 29 states.

Chief Justice John Roberts and Justice Amy Coney Barrett emerged as pivotal votes among the court’s conservative supermajority. Barrett asked probing questions of both sides, while Roberts suggested he wasn’t convinced by Trump administration contentions that late-arriving ballots could be outlawed without also undermining early voting.

“Maybe you’re not saying anything other than, ‘Well, that’s different,’” Roberts said to US Solicitor General D. John Sauer.

The dispute is part of a multipronged GOP effort to transform federal election rules in advance of a November election in which Republicans could lose control of Congress. President Donald Trump separately is pushing congressional Republicans to enact a sweeping law that would largely outlaw mail ballots, which he insists lead to widespread fraud despite studies and court decisions rejecting such claims.

Federal law sets the Tuesday after the first Monday in November as the “day for the election.” At issue is whether that phrase means that ballots need to be received by that date, or that voters must drop them in the mail by then.

The court as a whole suggested it will divide along ideological lines. Conservative Justices Samuel Alito and Brett Kavanaugh both asked whether late-arriving ballots might fuel claims that an election was stolen.

“Why wouldn’t it make more sense to take account in some respect of that concern?” Kavanaugh asked Mississippi Solicitor General Scott Stewart, who was defending the law.

Liberal Justice Sonia Sotomayor said those types of issues weren’t for the Supreme Court to address.

“The Constitution vests the issue of elections in the states, unless superseded by Congress, correct?” she asked Stewart. “So if there is a policy question to be had, the entities to decide that are the states and Congress, not the courts, correct?”

Mississippi was among a number of states that extended their ballot-receipt deadlines for the 2020 election, which took place during the pandemic, and the state later made the change permanent. Mississippi’s five-day rule applies as long as ballots are postmarked by Election Day.

In an unusual twist, the Supreme Court case features Republicans on both sides of the debate, with Mississippi Attorney General Lynn Fitch defending the law against arguments by the Republican National Committee, the Trump administration and the Mississippi Libertarian Party. The justices rejected a request from a Democratic-aligned lawyer to argue alongside Mississippi on behalf of organizations that represent military veterans and senior voters.

Barrett was one of the most active questioners. She said there were “lots of good policy reasons to require all the ballots to be in by Election Day.”

But like Roberts, Barrett wondered aloud how the court could read federal law to preclude late-arriving ballots without also calling into question the phenomenon of early voting.

“Why would absentee voting in a widespread way by civilians or early voting — why is that permissible?” she asked Paul Clement, the lawyer arguing on behalf of the parties.

The case is Watson v. Republican National Committee, 24-1260.

(Updates with excerpts from arguments starting in eighth paragraph.)

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Peter Blumberg

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