Election day—or election season

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NICK EICHER, HOST: It’s Monday the 30th of March. Glad to have you along for today’s edition of The World and Everything in it.

Good morning. I’m Nick Eicher.

JENNY ROUGH, HOST: And I’m Jenny Rough. Time now for Legal Docket. 

If you mail your ballot by Election Day, but it doesn’t arrive until days later, should it still count? 

That’s the surprisingly simple question before the Supreme Court in Watson vs. Republican National Committee.

KAVANAUGH: But it really goes to just thinking about what Election Day or day of election means.

Justice Brett Kavanaugh. His colleague Justice Samuel Alito, has the same concern:

ALITO: 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, 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.

EICHER: At least 14 states and the District of Columbia seem to think that’s about right. In this case, a Mississippi state law says a mail-in ballot counts as long as it’s received no more than five business days after the election. But federal law preempts state law. And the Republican National Committee and others argue that federal law does not allow a grace period.

That is the fight in this case, and it’s a good bit more complicated than it originally sounds.

ROUGH: It is. The Constitution grants the states broad authority over setting the time, place, and manner of federal elections. But Congress can set limits on them. Here’s how Justice Sonia Sotomayor paraphrased it at oral arguments.

SOTOMAYOR: The Constitution vests the issue of elections in the states unless superseded by Congress. …And absent a law in federal law that suggests that absentee ballots must be received by a certain time...

—then in that case, the state rule controls. 

For decades, no designated Election Day existed. But starting in 1845, Congress passed a series of statutes that set a uniform day for federal elections: the Tuesday next after the first Monday in November.

Mississippi was one of a number of states that changed its election rules during the COVID-19 pandemic to allow late arrival ballots. But absentee ballots open the door to more fraud, and the rules came under suspicion. After the height of the pandemic, some states retreated. Mississippi left its rule in place.

EICHER: During oral arguments, Mississippi Solicitor General Scott Stewart defended the state law. Stewart argued the federal Election Day statutes set a deadline to cast ballots. It's a final choice day.

STEWART: I think a very simple rule is that everybody must cast their ballot by Election Day. I mean, that’s quite administrable.

But he argued the federal laws are silent on the ballot receipt deadline.

STEWART: And I think a state could say, “Hey look, federal law didn’t wall us off from doing this. We get that it has some things about it that other states might weigh differently, but we want to allow that for our voters.”

ROUGH: The justices asked hard questions and painted difficult hypotheticals about how various states might allow a mail-in framework. 

Justice Alito:

ALITO: Aren’t there eight states that do not require a postmark for late ballots?

And how long can a grace period last?

ALITO: Isn’t it the case that some states will count ballots that are received 21 days after Election Day?

Also: to whom and by what means does casting a vote become a final choice? Mississippi accepts ballots through the private carrier FedEx. So what about other non-state officials?

EICHER: Justice Clarence Thomas:

THOMAS: If I give my mail-in ballot to my neighbor, is that a choice?

EICHER: Justice Amy Coney Barrett:

BARRETT: If I have someone in my HOA who says, "Listen, I’m going to take everyone’s votes in," what if the state said that’s fine?

GORSUCH: Well how about a justice of the United States Supreme Court?

Justice Neil Gorsuch. And he had another question: Can a voter who mailed a ballot recall that ballot?

GORSUCH: So here’s the hypo: Let’s say you have a state where a large portion of the electorate mails in their ballots on or close to election day. Not far-fetched, many states are like that. Then, the day after the election, a story breaks that one of the lead candidates engaged in an inappropriate sexual escapade or perhaps is colluding with a foreign power. Again, not far-fetched, I think. And the competing candidate immediately goes on the airwaves and urges voters to recall their ballots and to tell the common carriers not to deliver them. And many common carriers will do that … FedEx, you just call them up and say I want it back. In that hypothetical, did the election happen on Election Day? Oh, by the way, it swings the election.

ROUGH: On that note, what about the risk of destabilizing an election? An apparent winner who ends up losing because late-arriving ballots put his opponent over the top. 

Justice Kavanaugh quoted a friend-of-the-court brief to ask about that:

KAVANAUGH: The longer after Election Day any significant changes in vote totals take place, the greater the risk that the losing side will cry that the election has been stolen.

EICHER: But Justice Kentanji Brown Jackson brought the attention back to the legal question in the case.

JACKSON: I mean, there are a lot of policy questions. … But the question, I think, is whether Congress has precluded the states from making those calls, drawing those lines. And your position, as I understand it, is no.

STEWART: That’s correct, Your Honor.

JACKSON: That the scantness of Election Day in the federal statutes actually is a point in your favor because it indicates the Congress was leaving it to the states to draw the various lines that might arise in this circumstance. Is that right?

STEWART: That’s right, Your Honor.

JACKSON: So if we were focused, really focused, on what we’re asked to answer here, which is are the states pre-empted by federal law from having post-Election Day ballot deadlines, you would say no?

STEWART: No.

ROUGH: The justices also looked to history for answers. Famed Supreme Court litigator Paul Clement argued for the challengers and said history predominantly favors their position. In the mid-19th Century, everybody voted in person. But by the Civil War, states had begun to deviate from that to allow soldiers serving away from home to vote.

Justice Thomas asked Clement about that.

THOMAS: Would you spend a few more minutes … on the voting during Civil War?

CLEMENT: So proxy voting is the thing that happened in the Civil War that is most analogous to absentee voting.

EICHER: Proxy-style voting. Soldiers mailed a ballot home to be cast along with civilian votes.

CLEMENT: And the thing that is most striking is, I think five states had proxy voting, every one of those five states required the votes, the ballots, to be received by election officials back home by Election Day. Now that’s an incredibly inconvenient thing that was done in the Civil War to ensure the ballots were received by Election Day.

Another method: field voting. Election officials came to the barracks so soldiers could vote on-site.

CLEMENT: There were like maybe a dozen states that did field voting, and of course, most of the states went to enormous efforts to replicate the machinery of the ballot box and everything else in the field, and some variation in that. But the one thing that didn’t vary at all was that the ballots had to be received into official custody by Election Day.

So is Election Day a deadline or a duration? Justice Alito weighed in by putting Election Day on par with some of the most recognizable holidays on the American calendar.

ALITO: Labor Day. Memorial Day. George Washington’s birthday. Independence Day. Birthday. And Election Day. And they’re all particular days. So if we start with that, if I have nothing more to look at than the phrase Election Day, I think this is the day in which everything is going to take place.

The original public meaning. But he acknowledged it is true that different practices took place during the Civil War. Did that change things?

ALITO: And a big exception was made. … It wasn’t everybody going to a particular polling place and voting. So what then can we take from that? Should we just take from that, well, this was an incredible national emergency where extraordinary measures had to be taken?

CLEMENT: I think the thing that would have impressed them is that even at a time of great national emergency, every one of the states insisted that the ballots be received into official custody by Election Day. … Nobody said, "Well, you know, it’s a Civil War. Let’s give them a month." If you told anybody, "Hey, all this means is you gotta cast your ballot but the state can receive it up to 21 days later with or without a postmark," I think they would have thought that you were talking about a different country.

ROUGH: But one big problem for those who want to ban grace periods? If votes don’t count after Election Day, it should reason that they don’t count before Election Day, either.

Justice Elena Kagan:

KAGAN: Cuz every time I sort of try to state what your rule is, it seems to me it’s a rule that prevents early voting. Because you’re basically saying there are two things that have to happen, and they have to happen on Election Day. And it’s the voting, you know, the casting of the vote, and the receipt of the vote. And both of those things have to be on Election Day. And just like a normal person says, okay, well when I early-vote, I’m not doing that on that first Tuesday.

Finally, Justice Kavanaugh brought up an important doctrine known as the Purcell principle. Federal courts should not interfere with state election rules close to an election.

KAVANAUGH: If you were to prevail here, and say our decision was issued in June; Purcell issues with the states for the upcoming fall elections?

CLEMENT: I don’t think so. ... I think June would give them plenty of time, and remember this issue only affects the general election. It doesn’t affect primaries. … So there’s plenty of time. I don’t think there’s a Purcell problem.

There’s something to be said for uniform federal election procedures. But the Constitution does grant states broad authority. So the court will have to decide if Congress’ Election Day statutes have already set a time limit here, or if Congress has to do more if it wants to. 

EICHER: Before we go, very quickly, two rulings for you to know:

The Court last week sided with internet providers in a big copyright case, ruling unanimously that providers having a “mere knowledge” of their customers pirating music does not expose providers to liability. 

The court also limited the government’s power to extend supervised release. In an 8-1 vote, the majority decided that even if a defendant goes into hiding, her supervision term does not automatically get extended under federal law.

ROUGH: And that’s this week’s Legal Docket.

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