Conservative Justices Appear Skeptical of States Allowing Ballots That Arrive After Election Day To Be Counted

Conservative Supreme Court justices seem skeptical of a Mississippi election law that allows ballots to be counted if they arrive up to five days after an election in a case that could have major implications on the November midterm election.The Supreme Court heard arguments Monday in Watson v. Republican National Committee, a case that centers on Mississippi’s ballot deadline, but could affect at least 13 other states such as New York, Illinois, Texas, and California that allow late ballots to be tallied. States that allow extra time for members of the military and those living overseas could also be affected by the court’s decision.The federal election-day statute sets the Tuesday after the first Monday in November as election day for federal offices. The Republican National Committee argues that both the submission and the receipt of a ballot must occur by election day to be valid.Mississippi changed its laws during the pandemic to allow mail-in ballots. The RNC sued to block the post-election deadline despite other states having had extended arrival deadlines for decades.The United States Court of Appeals for the Fifth Circuit overturned a lower court decision allowing the extended period to receive the ballot and the state appealed to the high court.During Monday’s arguments, Justice Neil Gorsuch posed pointed questions to Mississippi’s solicitor general, Scott Stewart, about the state’s law. Justice Gorsuch asked whether there’s any limit to when ballots can be delivered and raised several hypotheticals, such as people trying to “pull back” their vote after mailing it.Mr. Stewart argued that federal law hinges on when the ballot is cast and not when it is received. He also said that voters can not pull back their vote under Mississippi law.Justice Samuel Alito had his own question on required deadlines under federal law. “So there are no limits?” Justice Alito asked. Mr. Stewart said there was no set deadline.Several conservative justices asked questions about who is authorized to accept the ballots — addressing a concern over ballot harvesting — as some states allow family members, neighbors, or others to collect and deliver sealed ballots on behalf of a voter.Opponents say ballot harvesting opens up the election system to someone tampering with or throwing ballots away to avoid them being counted.Another issue brought up by conservative justices was the state’s reliance on the postal service’s postmark as proof of when a ballot was submitted. The United States Postal Service has acknowledged that it may not post mark ballots on the same day they are received.Liberal members of the court stepped in to try to help support Mr. Stewart’s argument. Justice Sotomayor noted that some states have allowed mailed ballots to arrive after the election for more than a hundred years.The attorney representing the Libertarian and Republican parties, Paul Clement, argued that post-election deadlines for ballots lack common sense and are not legal under federal rules. He argued that there should not even be an extended deadline for overseas ballots or members of the military. Mr. Clement said states could avoid having extended arrival deadlines for those voters by allowing them to cast a ballot via email.Mr. Clement also brought up potential issues with allowing ballots to be mailed on election day after physical voting ended. He noted that voting ends at 8 p.m. in Chicago but the post office is open 24 hours a day. “I am not here to say there could ever be voting fraud in Chicago,” Mr. Clement said to laughter.President Trump has claimed mail-in voting is ripe for abuse and has pushed the narrative that fraudulent mail-in ballots cost him the 2020 election, though no evidence has emerged supporting his contention. Mr. Trump has threatened to sign an executive order to ban mail-in voting, though such an action would almost certainly run into legal challenges.

Conservative Justices Appear Skeptical of States Allowing Ballots That Arrive After Election Day To Be Counted

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