SCOTUS appears poised to strike down state laws allowing counting of late mail-in ballots

Lawyers for the Republican and Libertarian parties, as well as the Trump administration, have requested that the Supreme Court uphold a lower court’s ruling that struck down Mississippi’s law allowing for ballots received within five days after Election Day, and postmarked by that day, to be counted within elections.

Justice Samuel Alito pressed Mississippi Solicitor General Scott Stewart over the possibility of ballots being accepted weeks or months after the election, questioning why Election Day was given such a name if it extends beyond a day.

"So there’s no limit, except I suppose, the day when the presidential electors have to be appointed, or the day when the next Congress begins, begins its session. That’s the only limit on counting mail-in ballots?" Alito asked.

Stewart replied, "Those are some of the limits, Your Honor. But I'd also say the Federal Election Day statutes don't require states to count ballots at all. It doesn't speak to counting period. So I mean, if a state really didn’t—", with Justice Neil Gorsuch cutting in, "not counting but being delivered."

He continued, "so I do think it is a consequence, and you can tell me if I'm wrong, but just so we can wrap this up, that by any means and by any date, up until the next Congress meets, a state can receive ballots."

Stewart said that this was "potentially" the case for congressional races, but presidential elections may need to be earlier. "But again, I mean, there's nothing — the key question is, these are three one-sentence provisions, and we want to be, I think, very careful not to read them for more than they're worth."

The case surrounds three election-related laws: 2 USC 7, 2 USC 1, and 3 USC 1, and whether those override state laws allowing ballots to be counted after Election Day. The first of the statutes establishes Election Day as being the first Tuesday following the first Monday of the month. The second statute establishes when a new Congress starts following an election, which the third relates to when Americans vote for the next president and vice president.

Alito later added, "Maybe it's inevitable that some sort of line drawing decisions like these have to be made, unless the rule is anything goes, you know, states can do anything they want in this area. We don't have a whole lot to go on here. We have the phrase Election Day, and we have history. If we looked just at the phrase Election Day, what would we take from that? I think you've been saying we're—and we're moving in this direction. We don't have Election Day anymore. We have election month, or we have election months. I mean, the early voting can start a month before the election, the ballots can be received a month after the election?"

Stewart said that Election Day was set by Congress as the "final choice day" for voters, adding that without it, states could hold elections on different days, affecting the final outcome.

Alito noted a brief that stated "confidence in election outcomes can be seriously undermined if the apparent outcome of the election on the day after the polls close is radically flipped by the acceptance later of a big stash of ballots that flip the election."

Gorsuch asked attorney for the RNC, Paul Clement, "If we were to rule against you, is there anything that would limit states from allowing receipt by election officials" of ballots "up until the day of the next Congress?" Clement said this would be a "slippery slope," saying, "I don’t think there is anything that would stop that."