US supreme court to decide if states can accept late-arriving mail ballots

The US supreme court announced on Monday it will hear a high-stakes case about whether states can accept mail-in ballots that arrive after election day, even if they are filled out and mailed before then.

The case, Watson v Republican National Committee, involves a challenge to a Mississippi law that allows ballots to count if they are received within five business days of election day.

Election officials in Mississippi, citing longstanding precedent, argue that a voter has cast their ballot on or before election day the moment a ballot is postmarked in the mail, and that how it gets to an election office after that is an administrative issue.

“As a matter of plain meaning, an ‘election’ is the conclusive choice of an officer. Voters make that choice by casting – marking and submitting – their ballots by election day,” argues the state of Mississippi in its petition to the supreme court for review. “The election has then occurred, even if election officials do not receive all ballots by that day.”

Sixteen states, as well as Washington DC, Guam, and Puerto Rico, allow a mail-in ballot from a domestic voter to count if it arrives in a certain timeframe after election day but is postmarked by the election, according to the National Conference of State Legislatures. The policy is designed to ensure that voters who put their ballot in the mail ahead of election day are not punished if the mail is slow.

A federal judge in Mississippi upheld the state’s law, but it was reversed by the US court of appeals for the fifth circuit, one of the most conservative courts in the US. The majority in that court said that federal law sets one day as the day for federal elections and allowing ballots to arrive after that undermines the law.

The fifth circuit decision “distinguished between an individual ‘voter’s selection of a candidate’ and ‘the public’s election of the candidate.’” the Republican National Committee’s response to the supreme court appeal application said, quoting the fifth circuit decision. “An ‘election’ is final only ‘when the final ballots are received and the electorate, not the individual selector, has chosen.’”

Justices are considering a dispute over who has the right to sue in a second case involving mail-in ballots, Bost v Illinois, which challenges Illinois’s practice of counting ballots postmarked by election day but received up to two weeks later. Mississippi asked the court to refrain from considering the Watson case until it had ruled on the Illinois case.

The court is also hearing a major challenge to Section 2 of the Voting Rights Act, and appears likely to limit the scope of the landmark civil rights law.

Donald Trump and Republicans have railed against the practice of allowing ballots to arrive after election day. At least three states this year have ended the practice of allowing late-arriving ballots, and a March executive order by the president sought to punish states that allowed the practice. Lawsuits against this portion of the executive order are still ongoing.