Mail-In Ballots, the 2026 Election, and the Supreme Court

What’s at stake in Watson v. Republican National Committee.

According to Article 1, Section 4, of the U.S. Constitution, "the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations." Yesterday, the U.S. Supreme Court heard arguments in a high-profile case that asks whether the federal law that established a uniform national date for federal elections should be read to override a state law that allows the counting of mail-in ballots that were sent by election day but were not received until after election day. Judging by the oral arguments, the outcome may be too close to call.

The case is Watson v. Republican National Committee. As the name indicates, it involves a Republican-led challenge to a state's mail-in voting system. Mississippi law currently allows the counting of mail-in ballots so long as the ballot is postmarked by election day and received by state officials no later than five business days after election day. The Republican National Committee (RNC) seeks to abolish that state practice.

In its principal brief, the RNC argued that Mississippi's approach should be deemed illegal under federal law because "when Congress designated a single 'day for the election,' it set a deadline. If a state law extends the election after that deadline, 'it conflicts with' Congress's timing decision 'and to that extent is void."

In a reply brief, Mississippi Secretary of State Michael Watson argued that his state's regulation is nowhere precluded by federal law because "an 'election' is the conclusive choice of an officer, that choice is made when the voters have cast their ballots, and under Mississippi law the voters do that by election day."

Both sides agree that Congress may, if it wanted to, directly prohibit a state from counting mail-in ballots that arrived after a federal election. The disagreement is about whether Congress already has prohibited the states from doing so. Because federal election law does not explicitly say anything like that, however, the legal wrangling is largely over questions of congressional intent and statutory interpretation, as well as the related question of just how much deference the states ought to receive in this kind of dispute, given the leading role over elections that the Constitution did assign to them.

During yesterday's oral arguments, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch all sounded ready to rule against Mississippi's mail-in balloting law. "We don't have Election Day anymore," asserted Alito. "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."

Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, meanwhile, all sounded just as ready to rule for the state. "It seems odd to me," said Jackson, "that we are to assume that when Congress set an Election Day, it necessarily precluded the states from saying, in our state, we're going to consider Election Day to be the date of casting the votes and that we will, as Mississippi has done, continue to receive them up to a certain period afterwards."

As for the remaining three members of the Court, Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett, their views did not come across quite so clearly, at least to me.

Mississippi is one of more than a dozen states that currently have such mail-in balloting laws on the books. So the outcome of this dispute could impact election day practices well beyond the borders of the Magnolia State. With both a midterm election coming up this fall and a sitting president who recently argued that "Republicans ought to nationalize the voting," that leaves us with the makings of a Supreme Court decision that is as important as it is controversial. Stay tuned.

Comments

[Stupid Government Tricks]

Ho hum. Another muddle Damon Root article.

Because federal election law does not explicitly say anything like that, however, the legal wrangling is largely over questions of congressional intent and statutory interpretation, as well as the related question of just how much deference the states ought to receive in this kind of dispute, given the leading role over elections that the Constitution did assign to them.

Two comments. First, the Constitution does NOT assign the leading role over elections to the states. It quite clearly relegates states to doing what Congress allows. Damon Root even quotes the Constitutional language which says so:

According to Article 1, Section 4, of the U.S. Constitution, "the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations."

Second, this shows yet again that the Rule of Law, that great noble idea that everyone should know what is forbidden, required, and permitted through the magic of written laws and objective courts, is a myth once the lawyers get hold of things. There will be no consequences for writing unclear laws, no consequences for misinterpreting unclear laws, and the judges and justices will differ wildly in their interpretations, both now with each other and over time, for partisan ideological reasons dressed up in Latin jargon and cherry-picked precedent from hundreds of years of previous judicial decisions which bear only a passing resemblance to the current problem.

There's clear idiocy on both sides. Justice Alito is arguing something that isn't part of the dispute (early voting):

"We don't have Election Day anymore," asserted Alito. "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."

If late reception of properly postmarked ballots defeats the purpose of all voting on one Congressionally-mandated Election Day, then voting a month before is right out. Yet they are disputing only late reception of properly postmarked ballots.

The soft wing of the court doesn't seem to understand Article 1, Section 4, of the Constitution, which clearly gives Congress the ultimate say.

"It seems odd to me," said Jackson, "that we are to assume that when Congress set an Election Day, it necessarily precluded the states from saying, in our state, we're going to consider Election Day to be the date of casting the votes and that we will, as Mississippi has done, continue to receive them up to a certain period afterwards."

Yes, dearie, just as you are not a biologist and don't know what a woman is, you clearly can't read any better than those illegal immigrant truck drivers Reason decided to ignore.

[Idaho-Bob]

Seems some people will support ANYTHING that erodes election integrity.

Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, meanwhile, all sounded just as ready to rule for the state.

What a giant fucking DEI surprise.

[GroundTruth]

"It seems odd to me," said Jackson, "that we are to assume that when Congress set an Election Day, it necessarily precluded the states from saying, in our state, we're going to consider Election Day to be the date of casting the votes and that we will, as Mississippi has done, continue to receive them up to a certain period afterwards."

Justice Jackson makes no sense. Either Congress set an election day, or not. That is THE day. Not up until then; not starting then and until whenever the USPS finally delivers the envelope; Then; That day; Period.

I'd go further. In person in the town or city where you pay your taxes, on that one day, with an ID. At the national level at least, no absentees for any purpose.... at that level, the individual vote is a wash and there will likely be as many lefties as righties who happen to miss for an illness, vacation, funeral, accident or whatever.

(For a local election, the situation could be quite different. Our town almost its charter by one vote of about 4000, and then the count flipped the other way by about 5 votes on recount. Sample size matters!)

[Idaho-Bob]

I'd go further. In person in the town or city where you pay your taxes, on that one day, with an ID. At the national level at least, no absentees for any purpose....

I'd make deployed military personnel an exception.

[jimc5499]

The two Election Days that I was deployed, I got my ballot a week after the date it had to be returned by. Another good one was that in the 2012 election my reason for getting a mail in ballot (out of town on business) wasn't good enough and was declined. In 2020 I didn't request a mail in ballot and got six of them.

[charliehall]

Congress would have to explicitly make that exception if the SC rules against Mississippi. And that isn't going to happen.

[Longtobefree]

" . . . but the Congress may at any time by Law make or alter such Regulations."

No harder to understand than " . . . shall not be infringed."

So of course we have all this litigation.

[charliehall]

Mail in voting started with the American Civil War. Mail in votes from soldiers serving at the Petersburg campaign were the difference in the abolition of slavery in Maryland in 1864.

If the Supreme Court rules against Mississippi, it will effectively disenfranchise many US servicemen and women serving outside the US, as the APO and especially the FPO mail is often quite slow, especially from combat zones. They are more likely to be Republican voters. This will help Democrats this fall. Republican idiots shoot themselves in the foot again.