Justice Samuel Alito has voiced strong concerns that the Supreme Court's recent decision to permit the counting of mail-in ballots received after Election Day, provided they are postmarked by the deadline, could erode public confidence in election integrity and potentially invite voter fraud. The ruling, a 5-4 decision, upholds Mississippi's law on the matter.
In his dissent, Alito cautioned that allowing late-arriving ballots to determine election outcomes risks undermining trust in the electoral system. He argued that the majority's interpretation of statutory text, legal context, historical practice, and precedent was flawed. "The majority’s holding spawns a slurry of troubling election-law questions and risks further undermining Americans’ confidence in election integrity," he wrote.
Alito posited a hypothetical scenario where a presidential election outcome hinges on a state allowing late mail-in ballots. He suggested that if a candidate leading on Election Day ultimately loses due to these later counted ballots, it could fuel accusations of a rigged election. Justice Brett Kavanaugh echoed similar sentiments during oral arguments, noting that if the apparent winner on election night ends up losing due to late-arriving ballots, "charges of a rigged election could explode."
Citing the 2005 report by a committee chaired by former President Jimmy Carter and former Secretary of State James Baker, Alito pointed to findings that absentee voting is recognized as a significant source of potential voter fraud. While instances of fraud using mail-in ballots have been recorded, there is no widespread evidence of such fraud in recent presidential elections.
Democrats, however, argue that allowing ballots postmarked by Election Day to be counted, even if they arrive slightly later, is crucial for ensuring that all eligible voters can participate. Representative Marie Gluesenkamp Perez, D-Wash., stated her relief that the Supreme Court did not interfere with Washington's mail-in ballot system, emphasizing its importance for voters with demanding schedules or those living in remote areas.
The majority opinion, authored by Justice Amy Coney Barrett, did not address the policy implications of counting late ballots, stating that such considerations are within the purview of legislatures, not the courts. "As we have said time and again, however, policy arguments are properly directed to legislatures, not courts," Barrett wrote.