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:
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.
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