Democrat Mail-In Ballot Strategy At Risk From SCOTUS Election Day Case
“this will be a huge blow to the Democrat mail-in ballot efforts if the ballots have to be received by election day because it’s election day, not election season”
Earlier this week the U.S. Supreme Court heard oral argument in a case challenging a Mississippi statute allowing mail-in ballot received up to five days after Election Day to be counted. (Docket, audio, transcript.)
The law appears to defy three federal laws that require that federal elections be held the first Tuesday after the first Monday of November. The question is what did Congress mean by Election Day. Was it a day, five days later, a month later. Does Election Day mean election season.
The 5th Circuit ruled against Mississippi, which brought the case to SCOTUS. It could have profound impact on Democrats’ mail-in ballot strategy if ballots must be received by election official by Election Day.
I discussed the case and oral argument, plus redistricting and the Equal Protection Projects challenge to discriminatory NY State education practices, with Jesse Kelly, who tweeted out the portion regarding NY State:
It appears Kathy Hochul is defying the Supreme Court. @wajacobson's @ProtectionEqual is all over it. pic.twitter.com/NMSdCeZKfu
— The First (@TheFirstonTV) March 25, 2026
Here is the full segment:
Partial Transcript (auto-generated, may contain transcription errors, lightly edited for transcript clarity)
[Audio of Justice Alito during oral argument]
Kelly:
Okay, well, I gotta say Justice Alito is not being too coy about what he thinks about when votes should be counted.
Joining me now is somebody with a lot more wisdom than I have on these matters. The great Bill Jacobson, professor Cornell Law. Alright, Bill, obviously Justice Alito sounds like he’s on our side with this whole election day thing. What is this case about, the arguments, the judges? Where do you think this whole thing’s going?
WAJ:
This is a case arising out of Mississippi. Mississippi has a statute which is not uncommon, which allows the counting of mail ballots up to five days after election day. Other states, some states I believe have longer periods of time.
The question is, is that preempted by federal law? Because there are three federal laws, one for the House election, one for the Senate, and one for the presidential election, which say that the election day is the first Tuesday after the first Monday in November, that’s election day. And if you’re counting votes after election day, are you allowed to do that?
And I think Justice Alito is certainly suggesting, and the Fifth Circuit Court of Appeals held so, election day is when it happens. It’s not election month, it’s not election season, it’s election day. And we have, we use that term, Labor Day, Veterans Day, Memorial Day. Those are days, those are not extended periods of time.
There are other issues which are not directly before the court, but came up in oral argument. What about early voting? And that’s not really an issue here as long as the early voting is counted on election day, I don’t think that’s an issue and it’s not being challenged, and that’s what it is. And the Democrats not surprisingly want to be able to count forever.
I’ve not seen an overall statistical analysis, but I think you and I know from our anecdotal observations over the years, has there ever been an election ever where the post-election day counting helped Republicans? It always seems to help Democrats. And that’s what this is over.
This will be a big blow to the whole mail-in ballot initiative of the Democratic Party. What really has been their ace in the hole, something they have bested Republicans on. But that only matters if you can get all these mail-in ballots counted regardless of when they come in. So this will be a huge blow to the Democrat mail-in ballot efforts if the ballots have to be received by election day because it’s election day, not election season.
Kelly:
Okay, Bill, so the fact that Justice Alito sounds like he’s with us is not exactly breaking news. <laugh>, what about the rest of them? How do we, how do we think they’re gonna rule on this? I know I’m asking you to predict the future, but I didn’t listen to these arguments. I know you did. How, how’d it go for us?
WAJ:
I listened to the two hours and it appears that there is going to be a majority in favor of voiding these post-election day counting. But I can’t say that’s a certainty. There are certain cases where you just know what’s going happen. There are always the wild cards here. The Chief Justice, Amy Coney Barrett, maybe Kavanaugh, I don’t think so. Gorsuch actually from his questioning, seemed to be very skeptical of this notion that you can count after election day. So I think it’s going to go the way of the Republicans. I think it’s going to go the way that election day is when it has to be received by the election officials. But I can’t say that with a huge degree of confidence because most of the justices did not let it let on how they were feeling.
Of course, the three liberal justices didn’t hold back at all. Kagan was the least vocal of them. But Sotomayor and Jackson were very aggressive in talking over people and arguing the case. So the fact that they feel the need to do that leads me to think in their conferences they have a sense they’re probably going to lose here.
Kelly:
Ketanji Brown Jackson was talking over people. <laugh>, you don’t say. Well, all right. So, Bill, I hate to kneel down on the details, but details matter if there’s a ruling on this. Is this something that could be done and affect the midterm elections? Is this a distant future thing?
WAJ:
No, I think it affects the midterms. This is simply how they count the ballots. This is not who’s going to be on the ballot, In a lot of these election case, the time pressure is you have primaries and you need to get people on the ballot. That’s not the case here. This is simply about how they are counted and when they are counted.
Donations tax deductible
to the full extent allowed by law.
Comments
I listened in to the arguments and Prof Jacobson view seems correct to me. This is actually a simpler issue than many make it out to be. It isn’t about the many hypothetical scenarios, it comes down to:
1. Everyone acknowledges there is A point at which the ballot is too late to be considered. Heck the Mississippi statute in question orders late ballots DESTROYED.
2. The real question is when does that point occur.
The general tenor of the Court (aside from Jackson, Sotomeyor and Kagen) was ‘Election Day’ makes the most sense as the cut off and that casting a ballot means it is delivered to/received/accepted by elections officials with some sort of paperwork log that could be audited if necessary.
In my mind, a ballot received and counted before 11:59 PM is valid and an exercise in civic duty.
A ballot received and counted at 12:00 AM Wednesday morning should result in a twenty year prison term at the very least.
I might agree with a change of deadline to poll close. Extending past that is a problem for me. I’d prefer the non in person ballots whether mailed or hand delivered have a cut off before polls closing and preferably the day prior so that:
1. There’s segregation between ballots cast/received on election day and non in person ballots.
2. That the non in person ballots are counted first and the total known, released to the public before polls close.
This mitigates/eliminates any ballot dump, suddenly found ballots and so on. If some political operative deliberately ‘hides’ ballots and they don’t get counted then prosecute that person, their supervisor and everyone else who was responsible to make sure that didn’t happen. Each ballot rendered void because of deliberate malfeasance should be a separate count/charge in the indictment. We must stop treating incompetence of election officials as excusable error.
I agree with most of what you’re saying, except for mail-in ballot totals being released to the public before the polls close. That could affect in-person voting. Look what happened in Arizona in 2020 when Brett Baier announced Joe Biden winning Arizona before the polls even closed. It’s hard to know now if that would have made a difference in last-minute voting, but it could have.
Seems with the minor risk b/c it establishes the number publicly. Any change in the number would be instantly understood as bogus. No ‘golly, gee we had a truckload of ballots come in and we gotta count ’em’ BS Once that window closes it closes the cunt is final and that’s it. End opportunities for shenanigans and deviation.
Got to disagree on releasing the totals. In fact, I think that during tabulation each precinct should do it’s count and when they run out of ballots, at that point they indicate the are done and they hold their total until ALL precincts are done. Did you ever notice how the cities are always the last to turn in their results?
Why not release the total for that phase? I’m presuming the ballots are being reviewed, scrutinized by both election officials and partisan/party observers, tabulated as they come in. That way Fulton County or anywhere else doesn’t have leeway to ‘discover’ additional ballots. Create a process for mail in/hand delivered (non in person at the precinct) ballots that requires receipt, acceptance, review and tabulation for those ballots to be complete prior to election day and release of the total cements the #.
FWIW anyone with any interest and little commitment can figure out a very good educated guess on the totals now. Look at prior elections, the demographics and the party registration of the County/Precinct plus the specific trendline for that election and it gets you very close. If you’re worried about ‘influence on individual voters’ then ban all media about the horse race aspects and polls; they could still report on the policy issues and proposals but not Candidate X is ahead of Candidate B by 4 points or whatever.
why not all mail in ballots be in a week before the actual election day..its early voting in the truest sense
Maybe the Friday prior would work. Here in Alabama an absentee ballot other than traditional Military/Overseas ballot is very restricted basically comes down to medical emergencies or a shut in. Gotta get the request/application in with proof not just of ID but for the ‘Why’ to include a signed affidavit plus a signed letter from Physician (both notarized/witnessed). Ballot has outer envelope which requires a notary or 2 witnesses. If mailed must arrive NLT noon on election day to the Clerk, if hand delivered must arrive by close of business then day prior to election day. Can only be delivered by a ‘nuclear family member’ that was appointed in the original affidavit accompanying the application for an absentee ballot. Needless to say, we have very few non traditional absentee ballots compared to other States.
all well and good
all I know for sure is that its out-of-control and like all gov programs etc is abused and then. its the fox guarding the hen house when/if it were to come to prosecutions of cheaters
do any states do a random check in person of mail in voters?
have a dem/gop/independent go to homes even in the scariest parts of the hood?
yeah probably not
again…so if you collect any gov assist and you mail in votes there has to be some tie in to authenticity /loss of that assistance
if found guilty
that wont happen
and Im only a fan of the military being mail in vote eligible
prisons etc can have an actual voting booth
mobile voting booths brought to the door/neighborhoods of the needy
To be clear in person voting is much better. Frankly I’d be ok with a combo of Alabama and TX models. Have early in person voting period of a couple weeks (eliminates emergency absentee requests for medical reasons), limit absentee ballots to Military/Overseas (require tax returns to be submitted with ballot requests to validate if claimed address is consistent), no registration allowed within 45 days of election that would be valid for that election. I don’t agree with bringing a mobile voting van b/c that’s an unreasonable accommodation that privileges and prioritizes one subgroup. They could use the Alabama requirements and yes the Clerks here follow up with Physicians who write those letters and if they lie can lose their licence plus criminal charges.
Personally, I’ll disagree with you. I started doing mail-in voting a few years ago. I live in Florida, and they have a very secure system, IMO.
I think it’s better for the simple reason that when I received the ballot, I could research the different candidates or referendums. This is particularly useful for the local races, where I don’t know any of the candidates. It also gives me a chance to study any proposals on the ballot, and I can make an informed decision. I am not a single-party voter, and I don’t automatically support every referendum on the ballot, but my short-term memory sucks, so when voting in person, I’d forget who I was planning on voting for. Yes, I know and remember the big races, ie, president or congressmen. But mayor, police chief, school boards, etc, I don’t remember, and let’s be honest. They are the ones that personally affect us the most.
rwingjr, you can do your research in advance, and write a list for yourself of how you plan to vote for each office and proposal.
Andrew Branca covered it yesterday with video of the oral arguments (shows pictures of justices and attorneys making the arguments)
Between this and the SAVE act, expect the extinction of the satanic, lying Democrat crime cabal
https://www.youtube.com/live/9zSL8vWLVTA?si=j05sMtbRRw8LgWcP
They will not go non-violently.
Subotai Bahadur
I could be wrong, but I think, in Florida, mail in ballots must be counted before live ballots.
I believe that’s correct. Several States do it that way to reduce potential ‘surprises’. Some States seem to do the opposite…..
In Florida the first votes counted are early voting results and mail in ballots received by Election Day via the USPS. Then Election Day votes are tabulated. It’s why Florida has the whole state posted by 930pm.
I always thought that’s how it was supposed to be nation-wide. I thought mail-in ballots had to be received by Election Day.
No, in most states that’s not the case and never has been. Even in states where ballots have to be received by election day, they’re usually not counted until after all the regular votes have been counted.
Requiring postal ballots to be received by election day means that you’re requiring postal voters to cast their ballots at least several days before election day, and in some cases weeks before, which as Arradin points out seems like a much bigger breach of the concept of an “election day”.
The fact that federal law requires ballots to be sent to overseas and foreign voters 45 days before the election means the law acknowledges they will and must vote long before the election.
Well, ok, it will cut down on *some* small % of the fraud.
BUT, isn’t this backwards?
Federal Law specifies an “election day” and specifies exactly which day that is. Shouldn’t that be the day when 100% of all ballots are CAST in the election?
The law says nothing about how long it takes to count them.
100% of ballots cast PRIOR to election day should be illegal. That’s what would end “election season”. This case won’t do anything at all about that. There’ll still be early voting starting, literally, months in advance just like now.
All this will do is prevent the fraudulent creation of enough fake ballots after election day to flip a close election.
If they want to keep absentee, or even mail in, as an option – those people shouldn’t even be receiving their ballot until election day or maybe the day before. Fill it out and mail it – get the post mark ON election day, and then whenever those ballots get received they’d be counted.
The counting would go on for a few days (as it currently often days anyway), but at least you wouldn’t have anyone voting months in advance before the candidates even debate.
Also – the law says nothing at all about when ballots can be received.
If the postmark is on election day, it should count, yes? Takes a couple days for snail mail to get the ballot to elections officials – but, if it voter actually voted on election day and then mailed it that same day, with the postmark to prove it, how can this be a violation of that federal law?
This is all backwards. Election day is when we VOTE. Not when the votes are counted, or when the ballots are received by election officials.
If I were on SCOTUS, I’d be like Justice Thomas – setting records for solo dissents and for lone concurrences. Because that’s what the law actually says. And, its how things used to work when everyone had to show up in person and vote on the same day – back when the law was written.
There needs to be a cut off otherwise you have the situation you have in California where the final count isn’t completed for, what, nearly a month after election day is past.
The only real solution is vote in person on the day with ID.
“The only real solution is vote in person on the day with ID.”. I’m all for that. I wish we didn’t even have mail-in voting.
You have to make provision for people who can’t vote in person. At the very least for people in the military and diplomatic services, in hospitals, and in prisons.
(You can’t allow the government to disenfranchise people simply by arresting them. I don’t know what currently happens if someone is arrested on election day, when it’s too late to apply for a postal ballot, but some provision must be made or one day someone in authority is going to notice the loophole and take advantage.)
Not really. Its one day EVERY four years. Unless you are on active service there should be very few reasons for not voting on the day, in person and with ID.
Its supposed to be election DAY, not election months!
Is a postmark really proof of anything? Any postal clerk with the right equipment can postmark it any day she wants. I’m sure Democrat ballot harvesting operations have a friendly postal clerk or two on their team. That’s the problem. Once the Democrats know how many votes they need, especially in extended count jurisdictions like California, they find the number of ballots they need.
A postmark is proof of date of mailing for all other legal purposes.
But what do you do when a ballot comes in with no postmark? Remember Florida 2000, when the Dems tried to throw out all the military votes because they had no postmarks? We were told at that time that military mail was never postmarked, and that requiring it to be postmarked would simply disenfranchise the entire military.
Lots of franked/ permit mail never gets a postmark.
If you’re stuck basing your decision on what federal law currently says, i.e. you’re acting as a judge not as a legislator, then federal law requires states to send out postal ballots to military and overseas voters 45 days in advance.
We’ve always had absentee ballots. Some people are away in the military, and there are probably other reasonable reasons for using an absentee ballot. I don’t believe the current “I just don’t want to bother going to the polls on Election Day” is one of them. (I used early voting once because I had to go out of state because my mother was entering hospice. The line was ridiculously long on the Friday before Election Day.)
While I understand that some legitimate arguments exist for mail-in and absentee voting, the level of election fraud is currently too great to allow for it lest we keep ourselves open to the greatest conduit of bogus ballots.
For the foreseeable future, voting must be done in person, with proper identification and validation that the voter is a citizen of the United States.
And to violate voting laws we must subject those convicted to punishment that is within a hair of cruel and unusual. A single fraudulent ballot should result in at minimum twenty years. Conspiracies to defraud – which I strongly believe is responsible for many of the room temperature IQ politicians in office today – should be punished by death.
Why? No greater crime exists than to steal a man’s liberty, his vote being a critical component of that liberty. When you negate his vote through fraud, you rob him of his most precious civic duty. Putting criminals that have been convicted of such crimes to death makes it a lot easier to water the tree of liberty than to be using the blood of patriots.
Then how can you justify in the same breath disenfranchising those who can’t vote in person and on the day, or even those for whom doing so is an unreasonable burden? You can’t say both things at the same time. Either election security is so important that it’s OK to disenfranchise some people, OR letting everyone vote is so important that it’s OK to put up with some fraud.
Early in person voting in Florida is a well oiled machine. Just like going to your precinct they check your ID and that your current on the voter rolls. It has really cut down on mail in ballots. The one area that I would like to be addressed is mail in voting from nursing homes and memory care units. Those two areas are easy for relatives and others to commit vote fraud by filling out the ballot without proof that the voter was competent to know that was their choice on the form.
My degree is in special ed. Voting by facility administrator is explicitly taught in schools.
Agree. If they are not competent enough to get to the polls, they shouldn’t vote.
So servicemen are incompetent. People in hospital or homebound are incompetent. People who are traveling are incompetent. People who have to work all day on election day (including poll workers who are assigned to a different precinct than their home one) are incompetent. There are a lot of incompetent people. I’m OK with saying that at least some of these people shouldn’t vote, that we should sacrifice their right to vote for the sake of election security, but not with calling them incompetent.
We are talking about retards here. They probably shouldn’t vote, but federal law gives them the right to vote. Literacy or IQ tests for voting are no longer allowed.
When they had to vote in person in CT, their caretaker would go into the polling booth with them to guide their hands. I saw this when I was a kid, going to the polls with my mom.
Clearly, the suitcase under the counting table should be opened before midnight.
I’ve seen a lot of other shenanigans in Arizona in the past few elections: poll workers admitting they don’t know how to operate the machines, leaving the machines unattended, open boxes and no dual custody when transporting ballots, and poll workers giving out wrong information about provisional ballots.
Arizona has ballot drop off boxes where anyone can insert a ballot and present no ID.
I see what you did there: Enacting a law to extend vote counting with the intent to have it nullified by the Courts, thus depriving the Democrats a cheat pipeline nationwide.
Well played, Mississippi.
Congress doesn’t have the authority to make laws for presidential elections. The Electoral Count Act (assuming it’s constitutional at all) doesn’t dictate to the states what they must do, it merely recommends “best practices”, and promises the states that if they follow these then their electors won’t be challenged. That doesn’t mean Congress can refuse to count a state’s electors just because it chose not to follow these recommendations.
However for congressional elections Congress does have the authority to override all state laws, except for the location of polling places for senate elections. (It can dictate the location of polling places for house elections, but if the state wants to be difficult it can designate different places for senate elections, so that if someone wants to vote for both the house and senate they have to go to two different places.)
Never underestimate what you can gain from exploiting a flu virus for political gain and profit. Covid, for instance, has taught Democrats that, contrary to the experiences and understanding of virtually every nation and on this planet before 2020, universal mail in ballot policies coupled with sloppily maintained voter rolls and sloppy verification with a large helping of ballot harvesting and early elections is really the only responsible way to hold elections.
If a gambit works, it will be repeated.
And expanded…
But why does it always seem to work for just one side?
Because the other side makes a lot of feckless noise about it, but otherwise, site back and lets it happen as mutually agreed.
“Oh, poor, poor us! We just don’t have the votes! Our members don’t want to be here to represent you! They have other places to be! Ah well, I guess we’re going to lose!”
Because that side has total control of the Media Narrative and all the Institutions.
Democrats have turned voting into a let us count the ways we can cheat the system. Everyone knows what those tried and true tactics are. Time to go back to what used to work: vote on Election Day with ID or sit down and shut up.. .
We already know which way the three democrats are voting.
Only real question is whether we have any conservative Judges willing to join the known conservatives?
The only real question is whether we have any conservative judges.
This is all wrong, Mail in ballots should be banned. Period. With a mail in ballot there is no way to guarantee that the person listed actually voted or that the mail wasn’t intercepted and the vote changed,
dems will just go after mail in ballots as soon as it’s possible to request them, then go around to all the places they can either mark the ballots or steal them from mailboxes.
Loading the front end so to speak.
Only 6 years late.
The very idea that ballots with no date verification can be counted AFTER the election is over was ludicrously unconstitutional on its face.
This is not about ballots with no date verification. It’s about ballots postmarked on or before election day.
A postal worker can postmark something to a previous day. It is just a stamp, after all. It is a small hurdle, perhaps good enough for tax returns, but not true date verification.
Counting ballots after election day would not be an issue except for one very important thing. Counting ballots AFTER reporting of results starts leaves a wide open hole for bad actors to find ways of affecting the outcome. While I am against mail in ballots in general, keeping the results secret until all ballots are counted would plug a major opportunity for fraud.
You may remember the 2020 election where a major swing state where Trump was winning had the cumulative ballot count go negative in the middle of the night in favor of Biden raises suspicions of insider fraud.
Interesting reading on the legality of allowing votes to be counted for 5 days or more afterwords. I think it has eroded my trust in the process personally because it feels like people could be trying to “make up ” or get the votes they need to win for sometimes several weeks after an election. Whether or not that is actually happening I don’t know but for me it creates the perception of possible fraud. That perception generally makes me feel very hostile to mail in ballots period. However, I do see the necessity of having mail in ballots for the eldery, infirmed, disbaled etc. It’s just the nightmare COVID election experience where everyone was using mail in ballots made the whole thing feel like a giant fraud show. I hope they do require ballots to arrive by day of the election to close this loop hole and restore trust in the whole process.
Even if ballots must arrive by election day, that doesn’t prevent fraud. It just prevents the kind of fraud where the Democrat Machine says – how many ballots do we need? And if the number is feasible, they do it. This probably flipped several CA congressional seats in 2024. Of course, those seats are not fixed by gerrymandering.
Mail-in ballots also facilitate another type of fraud – places with transient populations like apartment buildings have mail rooms, and undeliverable ballots of people who no longer live there just pile up on a table, especially if they are too large to fit in the tiny mailboxes. Then the Harvesters simply scarf them up.
yes, the date of arrival for the mail in ballot seems like a minor issue compared to the so called ‘ballot harvester.’ I am half surprised the latter was not declared illegal from its beginning.
“Harvesting” of the kind Mewcat describes is illegal, and always has been. Anyone who gets caught doing it is guaranteed to be charged and is likely to go to prison. The problem, as with all election fraud, is that it’s very hard to catch people, so although very few people are ever caught it stands to reason that there are many who take the minimal risk and never get caught.
Ballot harvesting as a genuine term does not mean that. It’s a practice that in itself is perfectly honest and above-board, provided the state allows it, which many do. Ballot harvesting simply means offering to pick up people’s postal ballots from their homes and mail them, or deliver them directly to the electoral board. If done honestly and the state allows it, then there’s nothing wrong with it and the GOP should do it. The problem is that it’s extremely easy to abuse, i.e. to do dishonestly, so many states have banned it.
This is incredibly nieve, even for you justice milhouse.
You absolutely CANNOT guarantee any of those “legally harvested” ballots have not been tampered with in any way, shape or form, nor can you absolutely guarantee that the person casting that “legally harvested” ballot has done so of their own free will.
Just because the practice is deemed legal does not make it a correct course of action.
The ONLY guaranteed 100% honest cast ballot is the ballot that is cast IN PERSON, ON THE DAY, WITH ID.
The problem is that the right to make every vote count has become so sacrosanct that it has been allowed to badly compromise the need to rely upon the integrity of elections. The former is important all right, but not so much that it may compromise the belief, essential to any democratic system, that election results are honest. By fetishizing the imperative that every citizen’s ability to vote is absolutely unimpeded, we have arrived at the point where close election results are widely mistrusted, which is the worse evil.
Yes, exactly. We can only uphold every person’s sacred right to vote by accepting a certain amount of fraud. We can only have secure elections by accepting that some people will not be allowed to vote. We can’t do both. All we can do is choose one or the other, or else we can compromise and tolerate some small amount of fraud while also tolerating some small number of people being disenfranchised.