The Stakes in the Supreme Court Mail Ballot Case
It is a weak case, but it is best seen as part of a larger strategic effort to change how election rules are made.
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On Nov. 10, the Supreme Court agreed to review a case about whether states may count mail-in ballots in federal elections that are postmarked before or on Election Day but arrive after that date. Sixteen states, the District of Columbia, Guam, Puerto Rico, and the Virgin Islands, allow such ballots to be counted if received within a defined grace period after the election, which varies by jurisdiction. (In Mississippi, whose law is at issue in the case, that period is five days.) The Republican National Committee (RNC) claims that this practice conflicts with federal laws designating the first Tuesday in November in even-numbered years as “the day for the election” for both the House and the Senate, and every even-numbered four years, for the presidency. The Republicans argue that the states lack legal authority to provide for a grace period: Election officials must receive a mail ballot by Election Day, or it is unlawful and cannot be counted. A divided Fifth Circuit accepted the RNC’s position, the first court to do so, and the Supreme Court will now resolve the matter.
Predictions of how the Court is likely to rule are always hazardous, but in this instance, it is not going too far out onto a limb to say that the RNC’s claim will meet with skepticism among the justices. The dissent in the court below found the majority’s position groundless in every possible way, unsupported by “plain meaning, dictionary definitions, common parlance, historical practice, congressional intent, and congressional history.” This is not an exaggeration, and the reasons why are briefly noted below, with more close analysis available here and here.
But another question is the strategic motivation behind the pursuit of this claim and its implications for the role of presidents in setting the rules for federal elections.
First, the Merits: In a Nutshell
The plain text of the statute in question does not answer the question. As one commenter, Adam Unikowsky, has correctly noted, in an analysis cited by one of the dissenting opinions, “You can stare at the words ‘day for the election’ all day, and you won’t find the answer.” That is because Congress established the deadline but has left it to the states to determine how it would be met. States that require that mail ballots be postmarked by Election Day aim to ensure that voter choice is made by that day in order to achieve compliance with the law, while securing for voters the advantages of this mail-in option for voting.
The Fifth Circuit analysis founders on a basic confusion about the electoral process and how it operates: It conflates the casting and counting of ballots. These are not the same functions. Voters elect by choosing among candidates, which they must do by Election Day. The states discharge their separate administrative function by counting (then checking the tally and, as provided under state law, possibly recounting) the results, all of which occurs beginning Election Day and continuing days and weeks afterward. In the course of this post-election process, administrators canvass the ballots cast to ensure that all lawful ballots have been included in the count, resolve questions about particular ballots, conduct audits, and then, when all of this is done, “certify” the final results. All of this takes place after “the day for the election.”
In a 1997 case, the Supreme Court applied this distinction—between casting and counting—in ruling that Louisiana could not hold an “open primary” election for federal office before Election Day that resulted in a final selection of the winner. Louisiana law conflicted with the federal Election Day statute because it rendered Election Day meaningless: There was “no act in law or fact to take place on the date chosen by Congress.” By contrast, the ballot receipt deadlines now before the Court respect that “date chosen by Congress” by requiring mail ballots to carry a postmark before or on that day. In its reply to the RNC’s petition for certiorari, the State of Mississippi explained that, “Although parts of the electoral process can occur before or after [Election Day], voters cannot make their choice after that day, and the choice cannot be conclusive before that day.”
The Supreme Court has in a more recent, 2020 case acknowledged the critical distinction between the date by which voters have to make their choice and the different requirement for states in tallying the ballots. During COVID, a federal district court judge in Wisconsin had extended the ballot receipt deadline in that state for an additional six days beyond the date for a primary Election Day already extended to account for the healthcare crisis. The Court held that this additional extension by order of a court was unlawful, and in doing so, it distinguished “the date by which ballots may be cast by voters” from those “received by the municipal clerks” (emphasis added). The district court’s action “fundamentally alter[ed] the nature of the election.” It did so by authorizing ballots to be cast after the date set for the election.
Also relevant are the purposes behind the federal Election Day statute. One is to avoid “distortion of the voting process,” which would occur if states voted at different times and the outcome in one state could influence the results of an election held later in another state. Another is to relieve the burden on voters of having to turn out on different days for different federal elections (e.g. a Senate and a presidential election). Neither concern is implicated by states’ decision to allow the counting of ballots after Election Day if postmarked before or on that day.
And, finally, the case before the Court does not involve an issue long undetected or somehow shimmering below the surface of federal election law. Provisions for the receipt of ballots after the election (if cast by that day) have been in effect well over a century, all the way back to absentee voting by the military during the Civil War. The law that now provides for military and overseas voters to cast absentee ballots ties their lawful receipt in the states to the deadlines specified by those states’ laws. And if the states fail to meet the federal law deadline for delivering ballots overseas, the Department of Justice has the authority, which it has exercised, to require that the state law deadlines for receipt be adjusted for these voters.
In short, Congress has been both aware of the variations in mail-ballot receipt deadlines and has reflected that awareness in the design of its federal election legislation. And members of Congress might be thought to be especially attuned to the structure of election laws—the laws pursuant to which they stand for election and re-election. If they have a firm grasp on any key facts, one has to be the deadline by which their voters must have their ballots in for counting.
The Fifth Circuit panel nonetheless concluded that the text could be read to define an election as the combined actions of the voters’ choices and their receipt by election officials, all of which must occur on the same day. The court also thought that the Election Day receipt deadline was the best choice for states to make in designing their election laws, for otherwise, as Judge Oldham wrote in concurring in the denial of a rehearing, nothing “prevents the States from innovating with ever-later ballot receipt deadlines 2 months, or even 2 years, after Election Day…”
And Judge Ho, also concurring in the rehearing denial, added hypotheticals intended to show that if the deadlines for receipt were not uniformly set for Election Day, states would run amok: “What if a State changes its law to allow voters to mark their ballots and place them in a drawer. Or what if a State allowed a voter to mark a ballot and then post a picture on social media?” Having put the questions, Ho then acknowledged that they were “absurd.” It is rarely helpful to an argument to pose hypotheticals supposedly to illuminate your side of the case and strengthen its persuasiveness, only to immediately dismiss them as “absurd”.
Of course, as a matter of policy, states could conclude that they should require ballots to be received by Election Day. Many have done so, including four states that switched this year to that requirement. But the federal law does not by its plain terms command this choice, and states are free to choose differently, as a good number have. And the logic of the Fifth Circuit’s opinion would also dictate an end to “in-person early voting” that many states have adopted, because a vote cast before Election Day would be presumably as illegal as ones cast afterward. Forty-seven states have adopted early voting over varying time periods before Election Day.
So what is going on?
Donald Trump has been pressing the case that elections are rife with fraud and among their patent vulnerabilities is mail voting—all of it, as well as the postmark rules some states have established for the receipt of ballots. He has attempted by Executive Order to achieve the same result as the lawsuit: requiring an Election Day ballot receipt deadline for all states. The order addresses this and other issues, and for various reasons, a court has enjoined other parts of the order and not the one purporting to “enforce” the federal Election Day statute against the postmark rule. But the issue of his enforcement authority is not settled, and his party is pushing in all directions to make his case. The net effect of this initiative is to cast a shadow over the electoral process and promote the impression that elections he chooses to challenge are not reliable. In questioning particular results, this particular argument is now ready to hand.
And if Trump cannot achieve his goals by executive order, and if the Court rules against the RNC, his campaign against mail voting does not end. Rather, the focus may then shift to the legislation Trump has called for. This is the way that Trump, with a willing Republican majority, could rework the rules governing the conduct of federal elections, including but not limited to the specification of uniform ballot receipt deadlines. Here, Trump confronts hurdles. One is the filibuster, which he is feverishly lobbying Republican senators to discard. Another is the unwillingness among more traditional Republicans to give up on their party’s longstanding commitment to state control of these election rule-setting issues. With the House majority at stake, Trump and his political team may believe that he stands some chance over time to show that federal legislation is the only way for his election reform program to be adopted—and for the Republicans to stave off loss of control next year.
Parties have often fought over election rules, motivated by self-interest, different perspectives on policy and principle, or a blend of both. The battle has largely been waged in the states. But the most direct and efficient route to the federal election law he wants is a fully federalized reform effort, with his party’s congressional majority answering their president’s call for changes in voting rules.
So far, Congress has largely stayed its hand, respecting the role of the states. For a president like Trump, who champions a model of an all-powerful presidency and who is deeply committed to what is for him the supremely important goal of winning and not losing, this norm of federalism in election administration may be yet another norm he is looking to cast aside. In 2021, Republicans appealed to that norm in arguing against, and then blocking, election law legislation supported by President Biden and the vast majority of Democrats whose party controlled the House and the Senate. What happens now is another measure of the degree to which the Republican Party has become Donald Trump’s.