The United States Supreme Court heard oral arguments Monday in a case challenging the legality of counting late-arriving absentee ballots.
Originating in Mississippi, the case asks the Justices to decide whether mail-in ballots can be counted after election day if they are postmarked on time.
More than a dozen other states have similar laws on the books allowing for these ballots to be counted, so the Court’s ruling later this year can be expected to have a widespread impact.
The law at the center of this case was first passed in 2020 as a response to the COVID-19 pandemic.
A challenge to the policy was brought four years later by a coalition consisting of the Republican National Committee, the Mississippi Republican Party, a Mississippi voter, and a county election official.
The Libertarian Party of Mississippi also pushed back against the law in a separate suit that was later consolidated into this case.
The plaintiffs allege in their lawsuit that the policy is in violation of a federal law, enacted by Congress in 1845, declaring the Tuesday after the first Monday in November as “election day.”
A three judge panel on the 5th Circuit Court of Appeals agreed with this interpretation. Despite the dissent of five judges, the full court rejected the state’s petition to rehear the case. This prompted the state to go to the Supreme Court, which agreed in November to hear oral arguments.
Mississippi Solicitor General Scott Stewart argued before the Court Monday that the state’s policy of accepting ballots postmarked by election day but received late is consistent with federal law because voters have locked in their final choices by the prescribed date.
Paul Clement, representing the challengers, pushed back on this assertion, arguing instead that the concepts of casting and receiving ballots were “so inextricably intertwined” that “no one would have thought of one without the other.”
U.S. Solicitor General D. John Sauer, arguing on behalf of the Trump Administration, suggested to the Court that “Mississippi’s theory of election is so general and permissive that it would authorize statutes that Congress could not possibly have approved in the 19th century.”
A ruling in this case can be expected by June or possibly early July of this year.
[RELATED: SCOTUS Allows Illinois Republican’s Lawsuit Over Ballot Counting Policy to Proceed in 7-2 Ruling]
Consideration of this case by the Justices comes shortly after the Court ruled in a case out of Illinois concerning similar policies. That opinion, however, focused solely on the plaintiff’s standing to bring the challenge as a candidate in the race, not delving into the permissibility of the policy itself.
Authored by Chief Justice John Roberts, the majority opinion argues that candidates for office have standing to “challenge the rules that govern the counting of votes” in their elections because “an unlawful election rule can injure a candidate in several ways.”
“The harm to candidates from an unfair and inaccurate election is not common to all,” the opinion stated. “While voters also have a general interest in an accurate vote tally, a candidate’s interest differs in kind.”
“Rules that undermine the integrity of the electoral process also undermine the winner’s political legitimacy,” the decision continued. “The counting of unlawful votes — or discarding of lawful ones — erodes public confidence in election results and the elected representative.”
The Justices also found that candidates do not need to demonstrate that a law they are looking to challenge would likely impact their ability to win a given election, as such a requirement would necessitate turning judges into “political prognosticators.”
