This 5-4 shocker from the Supreme Court will inspire outrage from conservatives who expected a much different decision in Watson v RNC, based on oral arguments. The White House may be secretly thrilled.
Two months ago, observers felt sure that the Supreme Court would uphold a unanimous Fifth Circuit decision ruling ballots received after Election Day invalid in federal elections. Even the New York Times sounded pessimistic that the challenge to Judge Andrew Oldham’s ruling would succeed. They noted that Justice Amy Coney Barrett sounded especially skeptical about Mississippi’s processes in ensuring the ballots had been legitimately cast on or before Election Day:
Several other conservative justices including Justice Amy Coney Barrett, who is often a key vote, also had sharp questions for Mississippi. They focused on how the state could determine when a ballot had officially been cast, particularly because Mississippi allows late-arriving ballots to be counted when delivered by FedEx.
The NYT was right that Barrett was the key vote in this decision. They just got the direction incorrect. Barrett authored the decision overruling the Fifth Circuit, allowing ballots to be collected and counted after Election Day, in a 5-4 ruling in which Chief Justice John Roberts concurred. However, there may be a small glint of light for disappointed conservatives:
Three federal statutes set the day for the election of Representatives, Senators, and the President. A Mississippi law permits the counting of absentee ballots postmarked by election day but received up to five days later. We must decide whether the federal election-day statutes preempt Mississippi’s law. They do not. …
The question before us is a narrow one about timing. Plaintiffs do not challenge the manner in which Mississippi carries out federal elections. They do not, for example, challenge the general practice of absentee voting. Nor do they challenge the use of the Postal Service or a common carrier to transmit ballots.
Although the election-day statutes refer to a particular “day” for the election, plaintiffs do not contend that everything must occur on that day. For instance, they do not object to early voting or dispute that officials may count votes and certify a winner after election day.
Finally, this is not a case about the Constitution. We do not consider the scope of Congress’s authority to regulate federal elections. The sole question before us is whether counting ballots postmarked by election day, but received up to five days later, violates the federal election-day statutes.
That directly contradicts Oldham’s reasoning in the Fifth Circuit decision. Oldham had carefully parsed the implications for early voting in that ruling, noting that the requirement to complete an election on a deadline does not actually implicate how it begins. Oldham also noted that both Congress and the US Constitution reference “Election Day,” and that the common definition of “day” makes it perfectly clear what the founders meant in the constitutional language, and what Congress intended in statute.
Barrett et al dodges this by claiming that the language in the Constitution isn’t actually relevant. The main issue, Barrett writes for the majority, is that Congress didn’t preclude extended receipt and counting processes in the statutes governing federal elections. Therefore, Mississippi can apply reasonable extensions as it did before this legal challenge:
The electorate’s choice is made when voting is complete, not when ballots are received. The most recent amendment to the Presidential election-day statute bears this out. In 2022, Congress inserted the phrase “election day” into that statute and marked that day as a specific Tuesday. 3 U. S. C. §21(1). It then created an exception: When States “modif[y] the period of voting” in response to certain force majeure events, the term “election day” shall “include the modified period of voting.” Ibid. (emphasis added). That Congress defined “election day” with reference to “voting” indicates that “voting” is the act governed by the statute.
A related statute, UOCAVA, reinforces the point. 100 Stat. 924. It is the “most rudimentary rule” of statutory interpretation “that courts do not interpret statutes in isolation, but in the context of the corpus juris of which they are a part, including later-enacted statutes.” Branch v. Smith, 538 U. S. 254, 281 (2003) (plurality opinion). And UOCAVA confirms that while Congress has set the date by which absentee ballots must be cast, States have the power to set the date by which they must be received.
That seems like a stretch, one that Oldham refused to countenance. These changes were prompted by pushes to start vote collection early, not late, and for vote-by-mail systems that would necessarily result in early collection of ballots. Nothing in these statutes changed the plain meaning of the word “Day” and the constitutional imperative to complete the process for the “electorate’s choice.” The restriction on the casting of absentee ballots supports Oldham’s position more than it does Barrett’s.
Justice Samuel Alito blows up Barrett’s technical parsing of statute to get around the obvious in his dissent:
Federal law designates “the Tuesday next after the first Monday in November” as “election day,” 3 U. S. C. §21, and provides that elections for federal office must be held on that date. See 2 U. S. C. §§1, 7; 3 U. S. C. §1. As the Court explains, an election is “the expression of the electorate’s choice,” ante, at 7, but because the electorate is a collective body consisting of many individuals, the way in which it expresses its choice is less straightforward than would be the case if the electorate were a single individual. If the electorate were an individual, it could issue a document declaring that specified men and women were selected to fill the federal offices for which the candidates had competed, but because the electorate is a collective body, it cannot express its selections in that way. Instead, its choices are embodied in the collection of ballots cast by the individuals who make up the electorate. Taken all together, this collection is the equivalent of a single document declaring the winner of each race. This expression of the electorate’s choices is conveyed to the responsible election officials when the collection of individual ballots is completed. At that point, the electorate authoritatively expresses its choices, and what the election-day statutes demand is that this authoritative choice be made on election day. If ballots received after election day are added to the set of ballots that dictate the election’s outcome, the electorate’s choice does not occur on election day, and the federal election-day statutes are violated.
In this case, we must apply this interpretation of the federal election-day statutes to a Mississippi law that requires state election officials to accept ballots that arrive up to five days after election day. The acceptance of these late-arriving ballots effectively postpones the date on which the electorate’s choice is made, and federal law precludes that postponement.
As for the statutes’ adjustments for early voting, Alito acknowledges the legitimacy of the process, if not endorsing the policy. Early has nothing to do with late, however, as Alito insists:
Both voting by mail and early voting have become popular, and respondents do not dispute the lawfulness of these modern practices. Nor do I. But acceptance of these practices cannot change the fact that under federal law, the electorate’s collective choice must still be authoritatively expressed on election day.
That requirement is met in a jurisdiction with mail voting or early voting provided that the critical act occurs on election day: the completion of the collection of the ballots that embody the electorate’s collective choice. That is what took place when all voting was done in person, and compliance with the election-day statutes demands that the same occur in a modern election.
The Court disagrees and concludes that the election-day statutes merely require that each individual cast a vote on or before election day. See ante, at 9. But if that is all that the election-day statutes require, there is no sense in which the electorate as a whole can be seen as making its choice on election day. Rather, the electorate’s choice would be made piecemeal over an extended period prior to election day, and that prospect is blatantly contrary to what the election-day statutes demand.
Exactly. Three months ago, oral arguments strongly indicated that Alito’s reasoning held sway, even with Barrett. Unfortunately, it did not.
This cloud does create a silver lining, albeit a rather thin one. As one analyst wondered on the live coverage at SCOTUSBlog: “Will this decision push Congress to pass the SAVE Act now?”
It certainly could create more of a push for federal action. Some Senate Republicans have been reluctant to support the SAVE America Act because it goes much further than the voter-ID requirement in federal elections. The bill would impose significant restrictions on the manner in which states conduct federal elections. However, Barrett’s surrender on Election Day now repositions these reforms so that the White House can now argue that Congress has a duty to fix the statutes it has already passed controlling the conduct of federal elections, including the two in this case, as well as the voter-ID requirement that is overwhelmingly supported by the electorate.
Senate Republicans can no longer count on the Supreme Court to save themselves from hard choices when it comes to election security and reliability. Let’s see how much pressure the White House can generate from this Watson v RNC collapse, and how effective it might be in forcing the Club to commit to real action to restore confidence in elections, especially in California and New York, which have used mail-in ballots to make a mockery of elections.
Editor’s Note: The Democrats are doing everything in their power to undermine the integrity of our elections.
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