This week, the U.S. Supreme Court heard oral arguments in a case that hinges on the meaning of Election Day – and it’s got Democrats sweating.
The case, Watson v. Republican National Committee, challenges a Mississippi law that allows mail-in ballots received long after Election Day to be counted.
It’s one of 14 states, including populous ones like California and New York, that allows a post-Election Day “grace period” (five business days in Mississippi but longer elsewhere) for ballots to be returned.
That law is being challenged by the RNC.
Taking a states’ rights stance, Mississippi’s defenders argue that deciding when ballots must arrive is a state’s decision.Â
The U.S. Constitution reserves to state legislatures the authority to prescribe “the times, places, and manner of holding federal elections.”
True – but the Constitution empowers Congress to set the date.
In 1824, Congress chose the Tuesday after the first Monday in November as Election Day, and it’s been the same ever since.
But in recent years, the meaning of Election Day has been eroded – its finality and certainty upended by state laws allowing absentee ballots to be counted days later.
At stake is a national treasure of civic virtue, long understood as the one day on which the whole electorate’s votes get counted, and everyone knows the results.
The justices’ decision will have a national impact and could potentially affect November’s midterms.
New York’s law allows a ballot postmarked by Election Day to be counted as many as seven days later – and worse yet, it deems a ballot lacking a postmark to “be presumed to have been timely mailed or delivered.”
That’s crazy: It invites cheating.
And many, including House Speaker Mike Johnson, suspect that as ballots straggle in, fraudulent efforts to change the outcome could be afoot.
In California in 2024, “We had three House Republican candidates who were ahead on Election Day,” Johnson observed last month. “And every time a new tranche of ballots came in, they just magically whittled away until their leads were lost.”
Public confidence in the honesty of our elections matters, and states should avoid any procedure that undermines it.
For at least one of the justices weighing the Mississippi case, that will be a major concern.
In 2020, when the court was asked to intervene in a conflict between Pennsylvania’s highest court and its state legislature over a similar question, Justice Brett Kavanaugh said he favored limiting ballot-counting to Election Day.
Doing so, he wrote, would “avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of the election.”Â
The court refrained from intervening then, but Kavanaugh’s concern will likely influence the deliberations this time: Justice Samuel Alito voiced similar worries during Monday’s oral arguments.
Much of the discussion, though, focused on the history and meaning of Election Day, which Mississippi’s defenders claimed merely means the day on which voters decide, not the day their votes are counted.
That’s historically implausible, but the three leftists on the bench – Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson – showed interest in that theory.
But everyone in the courtroom agreed on one thing: Mail-in balloting is here to stay.
About 30% of the electorate voted by mail in the 2024 presidential election.
Only a sliver of those 24 million mailed ballots – about 725,000 in all – arrived late in states with grace periods and were counted.
It’s a small percentage, but as Johnson noted, in close races they can make an outsized difference.
Democrats argue that striking down the Mississippi grace period would throw the coming midterms into chaos.
But in fact, four states – Ohio, Kansas, North Dakota, and Utah – eliminated their grace periods last year, when the Mississippi lawsuit was filed. Ohio Gov. Mike DeWine said the case had forced his hand.
These states expect the grace period to be struck down, and they are on the mark.
Even if New York and other delayed-count states wait for the court to rule before acting, they’ll still have more than five months to alert their voters about the need to mail their ballots in early.
It’s hardly an insurmountable challenge.
And it’s something that’s already the law in 36 states.
A clear majority of states require ballots to arrive by Election Day to be counted, and no one is protesting that that’s a massive disenfranchisement problem.
Getting to the mailbox with plenty of time to spare is a small price to pay for the privilege of living in a representative democracy.
Betsy McCaughey is a former Lt. Governor of New York State and Chairman & Founder of the Committee to Reduce Infection Deaths. Follow her on Twitter @Betsy_McCaughey.
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Remember what Joseph Stalin said . it’s not who votes , it”s who counts the Votes .
Lets keep ELECTION DAY, not election week/month. No ballots counted after election day, except the military if necessary. I submit that these military ballots could be sent out and given time to get to election in time to count, before election day. The 2020 election, which everyone was afraid say it, was lawless to say the least, and I believe out right fraud. Four years later, and so many deaths and crimes, we see the results of that election, not to mention the wars of Ukraine and October 7th for Israel.
Really, elections have consequences
Election day should be exactly that. Postmarked legit ballots should be allowed however scrutinized closely. In all reality though voting in person has the best safeguards if you trust who’s running the election centers.
Using credit card encryption would be a step forward, one vote, one person, when and where. The technology exists, but dems won’t like it because it’s harder to cheat.
It’s called Election Day, Not election month.
When it comes to voting i am proudly old fashioned. Vote on Election Day with paper ballot (I do NOT and WILL NOT ever trust electronic voting).
There should be one day”Election Day” to vote. No exceptions! It comes the same time every year
if counting is allowed after election day that just gives the dims time to bring in more dead people to vote.
We have already seen the fraud involved with early mail-in and late mail-in voting. This is and was a democratic scheme to stuff ballots which is as bad as volunteers working in polling places adding ballots after the official close of day! How Obama got elected, how DG Biden got elected and Hillary would have gotten elected if she had Obama’s Panther Force out on the streets at the local voting sites imtimidating people. This has to STOP and we have to return voting to American Citizens who are IDENTIFIED and have REGISTERED at their local office to vote. Sick and tired of demented minds undermining the system to hack it and become a democratic/socialist/jungle. Just look at New York since that illegal idiot was supposedyl voted into office. Didn’t waste one day to jump on your face and do a tapdance, did he?
Left would never win without cheating and knows it, it will fight everything standing in their way and will bulldoze it through if the Republicans will not grow a spine and stand tall, instead of cowering and begging not to be hit. I am asking for a miracle I guess.
In the Election of 1864, Abe Lincoln knew He had reelection by 8am the next morning via the Telegraph. Now we are told by several voting districts that it will be perhaps weeks before results are known. So we knew who won promptly in the 19th century but not in the 21st? BOVINE EXCREAMENT!
Voting on Election Day, with exceptions: Americans working abroad, traveling, military. SAVE ACT must be passed.Fully fund DHS.
In blue states [aka Marxist], “judges” allowed ballots postmarked AFTER the election and/or unsigned to be counted. This just another way for DIMMs to see how many votes they need and then magically produce them! Also, they tend to “find” ballots in car trunks or safes!
The nation must create a joyful noise on tghis subject and demand that the final moment to count valid votes is Election Day. Make it a naitional holiday, if necessary but make the results determined by the end of the day determined by the Congress. Those who use the mails (myself included) are perfectly aware that ballots must be postmarked and received before the deadline. Stop messing with it and get the message out to even the thickest skulls.
We live in a REPUBLIC, why does everyone say that we are a Democracy, very little of the Democracy theme is ingratiated into our CONSTITUTION, only that which enhances or contributes to the Founders Idea and continuation of a Republic. LOOK IT UP!
I don’t trust mail in ballots. It’s too easy to have thousands of ballots appear OVERNIGHT and all are voting for the same person and clearly show they were copied. The Democrats don’t want to lose their illegal base that are not American citizens. If we go to another country, are we allowed to vote??? Of course NOT>
Constitutional Republic.
USPS recently announced that postmarks will reflect date of processing not date of mailing. How does that affect the discussion?
For whatever reason, you are a mail-in ballot person, you understand that the postal system may not always be on time, so it seems to me, that 24 hours is enough time to wait before counting ballots.
The Blue States will count illegal ballots for days, weeks or months after election day UNTIL THEY HAVE ENOUGH VOTES TO CLAIM VICTORY. MULTIPLE BALLOTS FROM EACH OF THE FOLLOWING: MILLIONS OF ILLEGALS, DEAD PEOPLE, MENTALLY ILL AND TENS OF THOUSANDS OF HOMELESS, JUST TO NAME A FEW. ,
Interesting that mail in ballots is “here to stay”. Only allowed for military and for the infirm that can’t physically get to the polls.
In my 65 years of voting, this has been the case UNTIL the insanity a few years back that some non-patriotic person had the idea that all ballots could be mailed in! The current mail in ballots are not secured nor is a public drop box secure! There is no accountability in that voting drop box or oversight of who drops in more than 1 ballot.
I think election day is just one day! All eligible voters should be given time off to vote and perhaps make it a national holiday for national elections. The mail in ballots should not be counted before election day and absolutely not counted after election with the exception of the military ballots.
We should also pass the SAVE THE VOTE ACT! That only eligible voters have their mail in ballots counted and only eligible persons allowed to vote in person. The current state control on the voting procedures has corrupted the process and caused a mistrust in our system. Since people have the ability to move from state to state, I think the Federal guidelines should be set in the SAVE THE VOTE ACT and should be the standard for every state, no special diviations or state rules!
INTERSTING ANOMOLY: The cert of Electoral votes by Congress is January 6, yet Congress persons newly elected are seated on January 3, where they certify the Electors in the election of the President and VP. DOESN’T THIS seem just a bit backwards??? Again, shortening the time between Election Day and the required cert of Electors MAKES the process “shoddy” and “in haste”. Election Day to Jan 6 is too short to shorten by weeks or even days. AND as SCOTUS identified, gives too short a time to develop vote error (fraud) evidence for review BEFORE cert and “impossible” correction. Again, desired by the Blue States by after Election Day acceptance of votes and counting.
Two FACTS are at play here:
1) the Election Day standard for all voting is the designated “Election Day” which means the count and winner are declared has stood for centuries on THAT DAY (AND is practiced successfully in virtually every other major country including voter ID except ours);
2) the reality of early voting provides ample time BEFORE the Election Day FACT for every voter to cast a voter and get it there timely, and the only one at fault is the voter who chose knowingly to mail it via an unreliable system, the Same system that delivers BY STANDARD ballots NOT by Name but by address, NOT necessarily the voter’s actual current address. Further, the PO has been known to hold mailings for various reasons and NOT deliver them timely to recipients, ANOTHER MAJOR PROBLEM for ballots and voting times to be “shorted”. FURTHER STILL, extending the receipt and counting deadline after Election Day disables the certification time NEEDED by States to verify ballots making that process “shoddy” at best (note: only Blue states seem to want no time to verify in line with them also wanting no voter ID and refusing to have clean up-to-date voter rolls) and get them to Congress for a Jan 6 verification under Federal law. UNDER these facts, 2020 was the SHODDIEST ELECTION EVER!!! AND the accompanying massively vulnerable mail-out mail-in ballot process as well.