Supreme Court Upholds Mail-In Ballots Postmarked By But Received After Election Day
Barrett joined by Roberts and the three liberals: “A Mississippi law permits the counting of absentee ballots postmarked by election day but received up to five days later. We must decide whether the federal election-day statutes preempt Mississippi’s law. They do not.”
Mississippi’s law permitting counting of mail-in ballots postmarked by Election Day but received up to five days later was challenged. The case revolved around what was meant my Election Day in federal statutes. I offered commentary on the topic after the oral argument, Democrat Mail-In Ballot Strategy At Risk From SCOTUS Election Day Case:
The Supreme Court just ruled 5-4 in an Opinion by Justice Barrett joined by the Chief Justice, and the three liberals, holding the Election Day doesn’t mean received by election day.
From the Majority Opinion:
Three federal statutes set the day for the election of Representatives, Senators, and the President. A Mississippi law permits the counting of absentee ballots postmarked by election day but received up to five days later. We must decide whether the federal election-day statutes preempt Mississippi’s law. They do not….
The question before us is a narrow one about timing. Plaintiffs do not challenge the manner in which Mississippi carries out federal elections. They do not, for example, challenge the general practice of absentee voting. Nor do they challenge the use of the Postal Service or a common carrier to transmit ballots.
Although the election-day statutes refer to a particular “day” for the election, plaintiffs do not contend that everything must occur on that day. For instance, they do not object to early voting or dispute that officials may count votes and certify a winner after election day.
Finally, this is not a case about the Constitution. We do not consider the scope of Congress’s authority to regulate federal elections. The sole question before us is whether counting ballots postmarked by election day, but received up to five days later, violates the federal election-day statutes.
The federal election-day statutes do not preempt Mississippi’s law. The defining element of an “election”—the term used in all three federal statutes—has always been the electorate’s choice of candidate. And a related federal statute, the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), confirms that while federal law dictates when ballots must be cast, state law dictates when they must be received….
The electorate’s choice is made when voting is complete, not when ballots are received. The most recent amendment to the Presidential election-day statute bears this out. In 2022, Congress inserted the phrase “election day” into that statute and marked that day as a specific Tuesday. 3 U. S. C. §21(1). It then created an exception: When States “modif[y] the period of voting” in response to certain force majeure events, the term “election day” shall “include the modified period of voting.” Ibid. (emphasis added). That Congress defined “election day” with reference to “voting” indicates that “voting” is the act governed by the statute….
In sum, the election-day statutes require the electorate’s choice to be made on election day. That occurs so long as election day is the deadline for individuals to vote—as it is in Mississippi. But the election-day statutes do not set a deadline for ballot receipt, so they do not prevent Mississippi from counting ballots postmarked before election day yet received afterward.
Alito, joined by Thomas, Gorsuch, and (in part) Kavanaugh, wrote the dissent:
Federal law designates “the Tuesday next after the first Monday in November” as “election day,” 3 U. S. C. §21, and provides that elections for federal office must be held on that date. See 2 U. S. C. §§1, 7; 3 U. S. C. §1. As the Court explains, an election is “the expression of the electorate’s choice,” ante, at 7, but because the electorate is a collective body consisting of many individuals, the way in which it expresses its choice is less straightforward than would be the case if the electorate were a single individual. If the electorate were an individual, it could issue a document declaring that specified men and women were selected to fill the federal offices for which the candidates had competed, but because the electorate is a collective body, it cannot express its selections in that way. Instead, its choices are embodied in the collection of ballots cast by the individuals who make up the electorate. Taken all together, this collection is the equivalent of a single document declaring the winner of each race. This expression of the electorate’s choices is conveyed to the responsible election officials when the collection of individual ballots is completed. At that point, the electorate authoritatively expresses its choices, and what the election-day statutes demand is that this authoritative choice be made on election day. If ballots received after election day are added to the set of ballots that dictate the election’s outcome, the electorate’s choice does not occur on election day, and the federal election-day statutes are violated.
In this case, we must apply this interpretation of the federal election-day statutes to a Mississippi law that requires state election officials to accept ballots that arrive up to five days after election day. The acceptance of these late-arriving ballots effectively postpones the date on which the electorate’s choice is made, and federal law precludes that postponement.
For this reason, I would affirm the decision below, which held that the provision of Mississippi law requiring acceptance of late ballots violates federal law. Because the Court reverses that decision based on a flawed understanding of the election-day statutes, I respectfully dissent.
***
Election day is a specified date, not a span of multiple days. The election-day statutes require that federal elections occur on that date. Under the challenged Mississippi law, however, the collection of ballots continues for five more days, and therefore the “election” is not held until the end of that period. Because federal law requires that the election occur on election day, it preempts Mississippi’s statute.
The dissent points out that this decision, rather than being narrow, opens up a whole host of issues. For example, why is the postmark sacrosanct but not other methods? What if alternative couriers or means we selected by a state? And why just five days late? Why not more? All this is contrary to the statutes, and ripe for fraud and loss of confidence.
States that favor mail-in ballots will push the limits with nothing in this ruling to stop them.
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Now discuss postmarks….
“This means that the date on the postmarks applied at our processing facilities will not necessarily match the date on which the customer’s mailpiece was collected by a letter carrier or dropped off at a retail location.
As before, a customer can ensure that a postmark is applied to his or her mailpiece, and that the date on the postmark matches the date of mailing, by visiting a Postal Service retail location and requesting a manual (local) postmark at the retail counter when tendering their mailpiece. Manual postmarks will be applied free of charge.
This guidance is the same for all types of mailpieces, including mail-in ballots. Customers with additional questions about mail-in ballots can visit our Election Mail website: https://usps.com/voterinfo”
https://about.usps.com/newsroom/statements/010226-postmarking-myths-and-facts.htm
Hand canceling is exactly what I do when sending tax returns to the IRS.
So Roberts just green lighted Dems, “finding votes” until their guy finally wins!
Impeach the SOB
The Democrats will get their union- controlled postal workers to make sure about those postmarks being right.
Democrat controlled election boards will just ignore the postmarks. California was counting those without postmarks. And, once you separate the envelope from the ballot, there is no way to identify when the item was mailed.
Here in MI, we’ve had erroneous postmarking demanded by PO officials.
One of the benefits of having the 3 democrat stooges; Whitmer, Nessel, and Benson, running the show.
The games continue.
Roberts made it all the more imperative for Congress to change the law, and that means we must increase our numbers in both Houses regardless of the unfavorable environment of a Midterm. Trump has to figure out how to motivate our people to turn out.
How many ballots will be received after Election Day?
As many as you need.
The more things change the more they stay the same.
My longtime belief that Barrett was a giant unforced error has been more than validated. And, since a majority of the S.Ct. is too incompetent and/or political to understand the term “election day,” the passage of the SAVE Act now becomes imperative.
The first hint was the adoption of 2 Haitian children to bring her brood to 7.
Terrible decision
In theory it is a good decision for military stationed overseas. But then I remember in one Primary Election, I didn’t get my ballot until after Election Day..
It never occurred to me that I could have asked my postal clerk to reset the date on his postmark stamper, which now will be done whenever more votes are needed.
We will have to catch someone in the act to force a fix on this!
The simple solution would be to make a deadline for mail-in ballots to be postmarked. They could say that they must be postmarked five or ten days BEFORE the election day and that would allow for the mail delay. Any votes postmarked five or ten days but received after the election would not be counted.
The math involved is apparently too onerous for an allegedly simple-minded electorate — at least, according to the Dhimmi-crats and this misguided SCOTUS majority.
The Dhimmi-crats’ goal is to create confusion, chaos and uncertainty in the ballot receipt and ballot tabulation processes, thus facilitating and enabling outright fraud and the conditions in which fraud takes place.
Asking someone to do something BEFORE election day would be considered outrageous as it makes it harder to slip in those needed fake ballots AFTER election day. A truly disappointing ruling, but to be expected in some ways. There will never be fair elections in this country because the people who are in a position to guarantee them, do not want to.
I suspect you meant “the simple solution would be to make an earlier deadline for mail-in ballots to be postmarked”. Which is true. To which I respond: Good luck getting such a law passed. The incentives are all wrong.
Still, I think your approach is the correct one. This is something we must fix with legislation, not court rulings.
And yet, the way I read this decision, Congress wrote all these loopholes into the law, and all SCOTUS did was point to them and say, “there they are.”
Clearly this is what Congress wanted — asking them to “fix” it will get you nowhere.
It appears that Brett Kavanaugh and Amy Coney Barrett work together so as to alternate or coordinate their swing votes.
1) We need to stop expecting the nine wise (wo)men in black robes to come and save us from the terrible decisions our lawmakers and presidents make (including the appointment of morons to SCOTUS – I’m looking at you, Joe Biden).
2) No one (me included) should offer an opinion on this or any other SCOTUS decision until that person has actually read the decision for themselves.
3) I agree with the dissenting opinion. But it’s up to Congress to be clear and unambiguous about the law and it’s up to the president to enforce it.
4) Since we’re talking about elections, and the concern here is election fraud, I reiterate that this is a crime that is not treated anywhere near as seriously as it needs to be. Election fraud, IMHO, is epidemic in the United States. If you’re convinced of election fraud, I believe you should receive the death penalty.
Is that you, Merrick Garland?
Hilldog Clinton, pre 2016 election: “Anyone who doubts the results of an election in America is a threat to democracy.”
Post 2016 election: Hilldog Clinton presents “What Happened? The Stolen 2016 Election,” the book, the movie, the speaking tour, and the musical.
Outlaw mail-in ballots altogether (except legitimate absentee, like overseas military), and all this goes away.
But no. We can’t have nice things. We must die by ten thousand paper cuts.
This ruling is 100% wrong because of one simple fact: The post office does not always postmark a letter the day it’s received, only when it’s processed. So if a letter is dropped off near closing on election day it is postmarked the next day. A Mississippi voter loses his vote even though he was there on election day to drop off his ballot.
You may want to try that reasoning again Justice Barrett (hint: use Registered Mail instead of postmark. Also goes a long way to reduce ballot fraud),
Under new regs, mail isn’t postmarked until it hits the first automated processing facility. That means it could take up to three days in rural areas. So for mail in ballots, it’s not just a matter of dropping it in a mailbox, if you want until the last minute, you have to take it into a clerk and have it hand cancelled.
A lot of election related mail isn’t even postmarked at all, as is normal for prepaid mail. California doesn’t really even require a postmark. And postal clerks can postmark any date they want.
No, Postal clerks can’t put any day they want. It’s far more likely someone would print up a fake stamp be cause postal cancellation stamps are kept under lock and key and tightly controlled. Individual clerks don’t have the ability to change dates.
If mail is routinely postmarked after the day of receipt then ballots postmarked after election day should also be accepted.
You have it backwards. Mail can sometimes be postmarked after it’s mailed, but it can’t ever be postmarked before. So if a ballot is postmarked on or before election day, that proves it was mailed on or before election day, which makes it valid. The fact that someone could mail their ballot on time and not get it postmarked on time, and thus it can’t be counted, is very sad for them, but not a problem for anyone else.
No one in this case was arguing for counting ballots postmarked after the election, on the ground that they might have been posted on time. There was a court decision in Pennsylvania in 2020 that did say something similar, but not in this case.
OK that sucks. Birthright citizenship ruling will likely suck, too.
That’s what I’m guessing also. They’re just going to legalize millions of people through the court.
I’m not so sure, but we will find out soon. I suspect they will not allow such an important change to be enacted by executive order, even if they rule that the Constitution allows some wiggle room for Congress, and that will make retaining both Houses in the Midterm all the more imperative.
Based solely on the excerpts reported above, Roberts is right and Thomas, much as he was in the Tariff case, wrong.
It was already conceded that the actual voting had to be on one specific day, nor that ballots did not, per se, have to have been counted on election day.*
The states consider a ballot dropped in the mail to be cast, then it is cast. If Congress wants to make it uniform that a ballot is not considered cast until it is in the hands of the state authorities, and I would support this. I fully endorse requiring ballot be received by election day and would vote for that if it were on my ballot.
But this isn’t about what I want, but about what is consistent with the law.
Thomas’ decision selection above is rambling and conflates votes made after election day and votes made on or before election day but not received until after election day.
* The election results you hear on election night are unofficial counts and the official tallies are not made until days or even weeks later by every state.
Roberts establishment cuckservative lining up with leftie wing of court again? Is anybody surprised?
Mail in ballots should be illegal. There is absolutely no way to guarantee that they haven’t been tampered with. There is no way to guarantee that they were even cast by the person “mailing them”, They are ripe for abuse and I’m sure much like ballot harvesting they are abused.
There should be only three ways to cast a ballot. One is in person. The second is when received by an official authorized to receive ballots (and presumably going to uphold their oath and not tamper with them). The third is by some mechanism guarantying their chain of validity used by the military and overseas voters that insures secure reception and transfer.
Since this is not the case every election is suspect which means we have entered the banana republic portion of our demise.
What you say is true. But SCOTUS cannot do this, and neither can the President. Congress would have to pass legislation.
We need the GOYA Voting Act. (Get Off Your Ass and vote in person on election day.)
John Roberts once again trying to solidify his status as the worst chief “justice” since Roger Taney.
In theory vote-by-mail should be a legit way to vote.
Those living overseas, bedridden, playing tourist in an RV during an election, there’s a bunch of legit reasons.
There’s also a bunch of legit reasons to require validation and fixed time frames for when / how you can do so.
This ruling allows for some validation (postmarks) whereas the (D) default and goal in trying to overturn these rules was that all validation is “racist” or some other civil rights offense.
It’s not a total win for election integrity, but it’s also not a total win for election fraud either.
It is a narrow statutory interpretation case. Congress should legislate tighter rules for mail-in ballots, including disallowing them completely outside of exceptional circumstances of military, overseas, and truly absentee voters.
Since we make up bogus, fraudulent DEI holidays all the time, we should declare one more, a good one this time though. Call it, um, I don’t know, how about ‘Election Day?’ Everyone gets the day off, to go vote and then at 7pm everyone watches as the ballots are counted, publicly reported, the janitors sweep up and we all go home, flush with civic pride and secure that our elections are fair and true.
Yeah yeah yeah, I know….
So the janitors don’t get the day off?
Or medical people
People tend to forget not everyone works a 9-5 job, M-F.
I’ve been a shift worker in a hospital for many years. 8-4, 4-11, 11-7. When we went to 12 hour shifts, it was 7-7:30AM and 7PM to 7:30AM. You know your shifts a month early, and if someone hadn’t voted we get a few hours to run and vote.
I am sure other professions do the same thing. If we work on a holiday, we get a floating holiday later, or a nice pay bump.
What sucks is when the healthcare professional returns from the polls and says ‘they said I already voted by mail and I didn’t’. So much for relying on these “conservative” justices.
Janitors get 1/2 day and medical people are used to it, working all the holidays. The point is to think of voting as a sacred rite as well as a right.
Accommodations can be worked out.
This decision may result in the end of the senate filibuster. It certainly strengthens the case for it as the Democrats will almost certainly do it if they gain control of the senate and house. It is a question of the Democrats HR 1 vs. the Republicans Save Act.
The Georgia legislation made it easy to vote but hard to cheat.
The Democrats rules make it easy to cheat and hard to detect.
USPS workers 90% unionized. Approx 75% union members vote dem.
What could go wrong there with (mis)handling of ballots in swing states?
So… if state law dictates when votes must be counted, what’s to stop states from not counting and certifying their elections if a candidate they dislike is winning?
How difficult would it be to back-date postmark by tweaking mail machine?
Not very. Postal clerks can postmark any date they want.
The machines can’t be “tweaked”. Any attempts to do so render the machine useless. It’s the hand cancellations with fake cancellation stamps that will be the problem.
Law-itis. Now we get endless court cases on:
Can a state allow 7 days after election day?
How about 10 days?
What about 14 days?! Still postmarked by election day!!!
What about a month?
There is no limiting principle to states’ being able to choose the number of days after election day that they will accept absentee ballots.
The limiting principle is that it is up to Congress to legislate such things.
It used to be called Election Day. Now it’s Election Month.
Bad as this ruling is, there is a dangerous presumption that all of this is based on: a belief in universal franchise being a right afforded to all adult citizens (although the Ds would prefer to strike the citizenship requirement and lower the voting age to 16). Hence the drumbeat of “make it easier to vote/ remove all hindrances to voting.”
No no no – we need to make it harder to vote, not easier. There needs to be some minimal threshold that must be met. Not without cause did the FF insist on male landowners being the ones given the franchise, although modern people would balk at both those requirements. At the very least it should be something like those of working age have to be taxpayers in order to vote – if you don’t pay into the system you shouldn’t have a say as to who gets elected. Minimum IQ would be be helpful too, as there are some people who are simply too stupid and/or ignorant to vote.
No, they didn’t. They left it entirely up to each state.
Unfortunately the 24th amendment specifically bans that. It’s a foolish amendment, but it’s part of the constitution.
I’m somewhat agnostic about this ruling, and think it’s different than what most are thinking. As I understand it, the ruling states that as long as the ballot is POSTMARKED the day of election, even if it’s received later, it’s good. If it’s postmarked, that means they voted the day of, even if it may be counted later. So with that being said, let’s look at what the possible consequences could have been if they had had ruled the other way. What if you had a Biden administration, that controlled the USPS, in a tight election? And what if that administration told USPS to hold up ballots from a predominantly GOP district, just enough to not be received on election day? You’re naive to think that couldn’t happen. This ruling kind of splits the baby. OK, you can have postmarked votes that count, but you can’t count the votes that are postmarked the day after (when the libs know how many votes they need to catch up). Not a perfect ruling, but I’m not sure a perfect ruling was possible.
So now it’s election season, not election day.
1) How long does it take to print fake ballots with modern computer technology?
2) How hard is it to create false postmarks?
3) Why should we have faith in the validity of elections?
Subotai Bahadur
Compromise: mail-in ballots count 1/10 of a vote each. If you want a full vote, vote in person.
We like to call this cheat by mail.
This gives Dems time to see how many fake ballots they have to get in to turn the election in their favor.
You can bet they are already printing them now.
Well great…they’re already printing ballots for November 2026 and the House is going to flip democrat; with any luck, the Senate will do the same…and the FIRST thing they’ll do is impeach AND convict PDJT for God knows what…thanks, SCOTUS.
In other words a lawful voter who is legally following the absentee voting laws set down by the state of Mississippi who is failed by the mail service will have his or her vote counted even if the mailman fails to deliver it on time.
Republicans have swept Mississippi elections in EVERY election there since mail in balloting started.
There is no evidence for rigged elections in Mississippi and if there was it would by definition mean the Republicans are the beneficiaries (you don’t rig an election against oneself)
I am supposed to be mad about the results?
If they are going to use mail -in-ballots there should be a strict limitation on their acceptance. It should be required to be valid that they have to be received and counted 30 days before the election. To be registered to vote should require proof of citizenship, birth certificate or legalization papers, and a printed copy of how you voted should be provided to you.