SCOTUS Upholds Mississippi Voting Law

However, SCOTUS is divided on what it means to complete a vote.

In Watson v. RNC, SCOTUS ruled in a 5-4 decision to uphold Mississippi’s law allowing mailed-in votes to be counted when they arrive up to 5 days after the election, as long as they are postmarked on election day. ACB and Robert joined the three musketeers (Kagan, Sotomayor, and KBJ) to form the majority, while Alito, Thomas, Kavanaugh, and Gorsuch dissented.

The key to remember is that the court was not asked to rule on whether mail-in voting was legal - only whether post-election-day ballot receipt was legal.

Justice Barrett wrote the ruling and relied heavily on the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), which allows our military and others to vote absentee via mail. This ruling relies on the phrase “deadline for receipt of the State ballot under State law” to hold that, while the feds set the day we are supposed to vote, the states set the deadline by which they must receive those votes.

“The Constitution thus envisions a system in which receipt of votes is necessarily divorced from voting.”

This is where the crux lies. The majority opinion feels that voting is simply the act of choosing the person for office. The dissent feels that a vote is not completed until it is in the hands of the election officials. I personally tend to agree with the dissent. If I were given an essay assignment for a class, just writing the essay does not complete the assignment. The assignment isn’t completed until I hand the essay to the teacher. But the majority opinion here holds that as long as my final decision was made by election day, my vote should count, even if it was late getting to the election official.

The majority opinion also holds that just because we’ve always done something one way doesn’t mean we need to continue to do so. They also suggest that if the people really want election day to be the deadline for ballot submission, they should get Congress to make it so. On the flip side, the dissent holds that we’ve always used election day as the deadline for voting in the general election precisely because of the same federal election law that the majority claims doesn’t include a deadline. They say that if you want to allow states to count votes received after election day, you should get Congress to pass a law allowing it.

Alito raised a hypothetical about an election in which the outcome changed after late absentee ballots were counted. However, we recently saw just that happen in the LA mayoral race! On election night, Pratt was in the number two slot and headed to the general. Then they started counting the mailed-in ballots, and over the next week, Pratt slipped to third, knocking him out of contention. California law allows for ballots postmarked by election day to be counted even if they arrive 7 days late! Under this opinion, California’s law is perfectly fine.

Alito also pointed to a string of questions that this ruling opens up. Like, if election day isn’t a federal deadline for receiving a ballot, are there any deadlines? The Mississippi law refers to ballots sent via USPS or a third-party carrier like FedEx, but what could count as a valid third party? Would a late vote still count if it was brought in by an Uber driver? Or a neighbor? Or maybe a ballot-harvester? Could a state use something other than a postmark to determine when a vote was cast?

I highly recommend reading the ruling for yourself. There is a lot of interesting history discussed. Both sides argued using the same case law but interpreted it completely differently.

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Lorraine Yuriar is a wife, mother, and lifelong conservative currently stuck in a very blue state.