Supreme Court allows late mail ballots, leaving California’s system unaffected
WASHINGTON — On Monday, the Supreme Court upheld state laws that allow the counting of ballots marked on election day but later.
The 5-4 decision rejected a Republican challenge to laws in California and 13 other Democratic states that allow these late votes to be counted.
Judge Amy Coney Barrett and Chief Judge John G. Roberts Jr. they joined three liberals to form a majority.
The decision comes as a bit of a surprise and should strengthen Democrats in the fall election.
Although California’s seven-day grace period for mail-in voting has contributed to slight tabulations, it has not been shown to cause fraud or unreliable vote counting.
Election law experts blame the slow numbers on the growth of mail-in voting combined with the need to carefully match signatures on these ballots.
The court said federal law dating back to 1845 had set the statewide election day as the Tuesday after the first Monday in November and voters were required to vote on that day.
Citing that fact, the Republican National Committee and the Trump administration have joined the challenge to Mississippi’s law passed during the COVID-19 crisis that allowed the counting of votes that had passed five days ago.
Trump’s lawyers say the federal law trumped or overruled state law.
“Since the beginning of America, election day has meant the day on which the ballot box closes – and when election officials must receive all votes,” wrote the Solicitor Gen. D. John Sauer.
Democrats say the Constitution says the “time, place and manner of holding elections” for Congress “shall be fixed in each district” by its legislature. However, Congress was given the power to override those state laws and set its own federal election laws.
Barrett said the federal election day only requires a voter to decide at that time.
“Election day laws require that voter choices be made on election day. That happens as long as election day is the deadline for people to vote — as is the case in Mississippi,” he wrote. “But election day statutes do not set a deadline for receiving a ballot, so they do not prevent Mississippi from counting ballots marked before election day but received after.”
Although Congress could have prohibited the counting of late votes, it did not. That may be because states wanted to count the votes of members of the armed forces who went overseas or arrived late.
However, last year, the 5th Circuit Court of Appeals in New Orleans overturned a Mississippi law that allowed the counting of ballots that were cast on Election Day but arrived five days later.
The three-judge opinion, all appointed by Trump, concluded that the election date set by Congress “is a date that must be both voted on by voters and accepted by federal officials.”
In its appeal, Mississippi adhered to the states’ rights doctrine and argued that federal election day laws mean that ballots must be cast — not received — on election day.
