Several Supreme Court justices expressed skepticism Monday over states that allow ballots to be received and counted days after Election Day, though they worried about where to draw lines and whether tossing out late-arriving ballots would also eliminate early voting.
The case saw the justices grapple with the morass that has become voting, with some states allowing ballots to be cast six weeks or more before Election Day, and states allowing ballots to be received weeks afterward.
In the specific case before the justices, ballots in Mississippi can be counted if received up to five days after Election Day, as long as they were mailed — or sent by a “common carrier” such as FedEx — by Election Day.
But opponents said that violates the idea that an election is “consummated” on Election Day.
“If somebody in Gulfport asks, the day after the election, is the election over, the common-sense answer is, ’No it’s not.’ The ballots are still coming in. And someone asks who won, the truthful answer is we don’t know yet,” said Paul Clement, who argued the case on behalf of the Republican National Committee, which challenged the late-arriving ballots.
All sides agreed that Congress has the power to set rules for federal elections. The question is whether Congress, when it first set a single uniform date in 1845 for Election Day, meant to forbid state experimentation with the timing of ballots being cast and received.
Scott Stewart, solicitor general for Mississippi, said it did not.
“This is ultimately a federalism case,” he told the justices. “Did Congress in 1845 block states from adopting a practice that no one had wide reason to consider at the time? Congress wasn’t thinking about that. It didn’t decide it, it didn’t wall states off from doing that.”
Several of the court’s GOP appointees sympathized with those who felt elections have spiraled beyond recognition.
“We don’t have Election Day anymore, we have election month. Or election months,” said Justice Samuel A. Alito Jr., a George W. Bush appointee.
Mississippi adopted its rule for the 2020 election amid the pandemic. At that time, the ballot had to be collected by the U.S. Postal Service by Election Day.
In 2024, the state added other common carriers as acceptable receivers of ballots.
Justice Neil M. Gorsuch, a Trump appointee, wondered whether states could even allow a ballot to be turned over to a notary public, or a neighbor who, as long as they certified that they collected the ballot by Election Day, could then deliver it within five days and have it still count.
He also said FedEx allows people to recall something they’ve sent. He said that opens up the possibility that a voter sends a ballot on Election Day, sees a scandal in the news the next day about their choice, and asks the company not to deliver.
“Did the election happen on Election Day?” he said.
Congress first passed a federal election day law in 1845 and firmed it up in 1872, bookending the Civil War. And that loomed large in the arguments Monday.
Justice Sonia Sotomayor said states made provisions to allow ballots to be cast by troops on the battlefield even outside of Election Day itself. Some states even allowed military officers to collect ballots from their troops, circumventing the usual process of an election official being involved.
But Mr. Clement said those states made “herculean” efforts to make sure ballots were cast by Election Day.
“People literally went into harm’s way in order to do field voting,” he said.
The case hinted at the absolute morass of voting rules in the states at this point.
Voting can begin as early as five days before Election Day in some parts of Pennsylvania; two states allow voting 46 days ahead, and three allow 45 days.
And ballots will be counted if received weeks late in some states, including as late as 21 days after Election Day in Washington state.
Justice Sotomayor, who lives in the District of Columbia, said she casts her ballot at an unmanned ballot box, and she has no idea when it actually hits the hands of election officials.
Justice Elena Kagan said if the high court were to adhere to the exact wording of the federal law, early voting would have to fall, too.
“It just seems inconceivable that, on the basis of this kind of evidence we would reject this practice in 30 states,” she said.
The Trump administration sided with the RNC and against Mississippi, with Solicitor General D. John Sauer saying history confirmed Congress’s idea of a limited Election Day.
Justice Sotomayor, though, scolded Mr. Sauer for “selectively” quoting from history.
“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.
Mr. Sauer bristled at the accusation, saying he stood by his reading of the history.
