Supreme Court appears skeptical of laws counting mail-in ballots after Election Day

At the Supreme Court Monday, the conservative majority seemed ready to overturn laws in 29 states that allow mail-in votes to be counted after Election Day if they were postmarked by Election Day.
President Donald Trump has long railed against mail-in voting, believing — incorrectly — that those late votes improperly cost him the 2020 election. But citizens and politicians alike have enthusiastically embraced voting by mail.

The split was illustrated in Monday's case from Mississippi. In 2020, the state Legislature, by a bipartisan and nearly unanimous vote, approved a five-day grace period for counting election ballots if they were postmarked by Election Day but arrived late.

But in the Supreme Court Monday, the conservative justices, like Trump, seemed suspicious of extending a short grace period to count late-arriving ballots. Justices Neil Gorsuch and Amy Coney Barrett, for instance, fixated on what they deemed the possibility of voters "recalling ballots," which they said could be theoretically done by the U.S. Postal Service or other common carriers like FedEx.

Mississippi Solicitor General Scott Stewart tried repeatedly to assure the court that the state does not permit ballot recalls. But Gorsuch in particular seemed to view those assurances as unreliable.

"FedEx isn't an election official," Gorsuch said.

Similarly, Justice Brett Kavanaugh questioned whether a grace period to count legally cast ballots might undermine public confidence in the election process. And Justice Clarence Thomas wondered how early voting is legal. On that, however, even the Trump administration's solicitor general, D. John Sauer, conceded the validity of early voting.

The larger question that seemed to divide the court's six conservatives from the three liberals was where the court should be in terms of assessing new election procedures.

Why, asked Justice Ketanji Brown Jackson, should we look only at old procedures and not new ones that Congress has left undisturbed. And finally, Justice Sonia Sotomayor took aim at what she viewed as dishonesty in the Trump administration's brief.

"I am a little upset — not a little, a lot upset — by many of the statements in your brief quoting historical sources out of context," she said.

A decision overturning Mississippi's law would have particularly profound implications for large rural areas, and members of the military abroad.

The state most likely to suffer serious ramifications is Alaska, the nation's largest state by area, where 80% of the population lives off the road system, the weather is unpredictable, and some communities do not offer in-person voting. Indeed, in 2022, ballots from six rural villages were not counted because the U.S. Postal Service failed to deliver them in time.

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