The Supreme Court has affirmed that states can count absentee ballots arriving after Election Day, rejecting a legal challenge that sought to invalidate such ballots. The case, Watson v. Republican National Committee, saw four of the nine justices dissent.
The lawsuit's premise was that three 19th-century federal laws dictating election dates required all lawfully cast ballots to be discarded if they arrived after Election Day. These federal statutes, enacted at different times, establish "the Tuesday next after the 1st Monday in November, in every even numbered year" as the election day. The Republican Party's argument, also supported by the Libertarian Party of Mississippi, was that these laws prohibited counting absentee ballots mailed before Election Day but received afterward.
Mississippi, a defendant in the case, is one of approximately 30 states that allow some late-arriving mailed ballots to be counted, offering a five-day grace period as long as the ballot is postmarked before the deadline.
Justice Amy Coney Barrett, writing for the majority joined by Chief Justice John Roberts and the three Democratic-appointed justices, stated that federal law set the day for voters to cast their ballots, not the deadline for the ministerial task of collecting them. "When federal law set the date for the 'election,' it 'set the day when the electorate must make its choice,'" Barrett wrote. This interpretation contrasts with the dissenting justices' view that the statutes, originally conceived when in-person voting was the norm, should apply to the collection of all ballots.
Evidence cited in the majority opinion suggests that Congress has historically recognized states' authority to determine deadlines for receiving absentee ballots. The Uniformed and Overseas Citizens Absentee Voting Act, for instance, requires overseas military voters' ballots to be delivered to state officials by a deadline to be counted, and specifies that ballots arriving after the state's receipt deadline will not count.
The ruling also highlighted historical precedent, noting that during the Civil War, states like Nevada and Rhode Island collected ballots from soldiers after Election Day to be sent to officials for counting. Throughout the 20th century, numerous states enacted laws allowing late-arriving ballots, and these laws were not challenged under the election-day statutes.
Justice Samuel Alito, in his dissent, echoed arguments critical of mail-in voting, suggesting that counting late ballots could lead to perceived election fraud if vote tallies flipped. He argued that the election-day statutes implicitly required all ballots to be gathered on Election Day, reflecting practices from when voting occurred in person. The majority opinion countered that this interpretation would invalidate modern voting practices, including early voting, which also did not exist in the 19th century.
The case's progression to the Supreme Court and the fact that four justices entertained the challenge have been described as a concern for the institution's integrity, particularly given the partisan nature of the arguments presented. Ultimately, the majority affirmed that federal law does not preempt states' ability to set their own rules for the receipt of absentee ballots after Election Day.