The current conservative Supreme Court rarely gets it wrong when it comes to election administration.
But this week’s ruling in Watson v. RNC, that reliable majority flipped on its head with Justices John Roberts and Amy Coney Barrett siding with the liberals by holding that, despite plain language in federal law dictating one clear federal election day, states are free to hold federal elections that go days, weeks, or even months into an overtime period for absentee and mail ballot collection.
Now, it’s up to the 14 states that allow for post-election day ballot receipt to inject confidence in Election Day by reaffirming – as required by federal law – that Election Day does not somehow mean “Election Week” or even “Election Month.”
In a 5-4 decision that saw Justice Barrett siding with the likes of Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, the court upheld a Mississippi law that allowed for ballots that were only postmarked by election day, but received by election officials days later, to be counted in the regularly-tabulated totals for an election.
In arriving at this conclusion, the Court followed contorted logic that an election could be deemed to be concluded despite states being permitted to actively collect – and solicit the receipt of – new absentee ballots.
And it summarily discounted the fact that, since first class mail may be recalled, a voter’s choice is not final until that ballot gets delivered to the election official, meaning that for voters who vote by mail, that choice isn’t finalized until the mail is actually delivered.
O.J. Simpson famously published a book called “If I Did It,” in which he explained that while he didn’t kill his wife, he laid out the way in which he would have done it. In his dissent, Justice Alito didn’t need to refer to such hypotheticals to show how someone could undermine – even steal – an election, he instead cited five very real, very recent instances in which absentee ballot fraud resulted in a new election, including one in which “Georgia courts had voided an election after finding ‘widespread’ absentee-ballot fraud involving vote buying, vote selling, multiple voting, felon voting, and deceased-person voting.”
Many states also permit harvested absentee ballots or even ballots without a postmark altogether to be delivered after Election Day. However, the Supreme Court’s majority opinion simply ignored the policy arguments that a mandated stop time for ballot receipt would prevent fraud and restore confidence in the elections. Instead, they said that those arguments are better directed at state legislatures.
On that point, we agree: states could and should take any number of actions that would bolster confidence in the election process, including implementing photo voter ID, implementing proof of citizenship requirements on voter registration, commonsense safeguards in the casting and counting of ballots, as well as transparency in the procedures by which federal agencies and regular citizens can meaningfully audit those processes.
Now, the 14 states that still allow ballots to be received after Election Day could start by doing what the Supreme Court would not – mandating that the prescribed day on which the election is held means the ballot receipt deadline. Late last year, the State of Ohio saw an opportunity to instill even more confidence in its elections by passing and signing a bill that would take bold action even before this Supreme Court holding, and end the state’s four-day period after an election during which absentee ballots could still be received and counted towards the election tallies.
Other states should follow Ohio’s lead and give their voters the right to know that ballots being tallied in the days and even weeks following Election Day are not the result of some ballot drop or ballot harvesting operation in a way that nullifies the legitimate, validly-cast votes on or before Election Day.
Election Day means Election Day for a reason, even if the majority of SCOTUS disagrees.
Steve Roberts and Nicole Kelly are the founders of Save Election Day, a non-profit advocating for state law-based election reforms. They are also political lawyers at Lex Politica PLLC.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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