Justices Skeptical of Mail-In Balloting

If President Trump’s campaign to curb the overuse of mail-in ballots fails to prosper in Congress, it appears that the Supreme Court could bolster the cause of election integrity. That, at least, is how we interpret the tenor of the justice’s questions during oral arguments today in a case centering on a Covid-era Mississippi law that allows mail-in ballots to be counted even if they arrive after Election Day. Similar laws are on the books in at least a dozen states.“Mail-in cheating,” is how Mr. Trump today characterized the widening use of voting by mail in state elections. The rise of postal voting has raised concerns about abuses like, say, ballot harvesting, in which activists collect and submit paper votes from members of their own party. In such cases, who can be sure about the identity of the voters, and the sanctity of the secret ballot? Hence the push in the GOP-backed SAVE America Act to curtail the practice. The bill, though, which would also require voters to show photo identification at the polls, is bottled up by a filibuster in the Senate. The inaction on the bill, with the midterms looming, freights all the more today’s case before the Nine, Watson v. Republican National Committee. After all, 46 percent of the votes in the 2020 election were cast by mail. That might have been defensible in the pandemic, but since then liberals have increasingly warmed to the tactic.No longer, it seems, is there much regard on the left for the civic rite of casting ballots on Election Day in person. Instead, efforts abound to encourage early voting, no-excuse absentee voting, and mail-in ballots. These columns have called these policies “a kind of complement to the Democratic Party’s aggressive get out the vote tactics.” Justice Samuel Alito today lamented that as a result of these changes “we don’t have election day, we have election month.”Justice Alito, too, warned that mail-in voting can spark doubts over election integrity. “Confidence in election outcomes can be seriously undermined,” he cautioned, if “the apparent outcome of the election” when the polls close gets “radically flipped by the acceptance later of a big stash of ballots.” A lawyer arguing for the GOP in opposition to the Magnolia State law, Paul Clement, underscored this concern by pointing to Chicago’s postal service.“Postmarks have their own problems,” is how Mr. Clement put it. Even if polls in Illinois close at 8 p.m., he mused, the Windy City’s main “post office is still open until midnight.” Mr. Clement added: “Now I’m not here to say that there could ever be voting fraud in Chicago,” prompting laughter in the courtroom. Yet he wondered over the prospect of “a four-hour window” where people can get “absentee ballots postmarked after all of the returns are in.”Though Mr. Clement was mooting a hypothetical prospect, one can only imagine the opportunities for electoral chicanery that have been opened up by widespread adoption of mail-in voting, especially in states that count ballots that arrive after Election Day. Mississippi’s solicitor general, Scott Stewart, averred that “this is ultimately a federalism case.” Yet surely there is a national interest in ensuring the integrity of the voting in elections for federal office.

Justices Skeptical of Mail-In Balloting

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