Can a mail-in ballot received after federal election day be counted? That’s the deceptively simple question at the heart of Watson v. Republican National Committee, a case that will come before the United States Supreme Court on March 23.
The controversy centers on a Mississippi law that allows for the counting of mail-in ballots cast by federal election day but received up to five days later. Opponents of a grace period for absentee voters — a policy in effect in 13 other U.S. states — argue that accepting late-arriving ballots conflicts with federal law and warn that doing so could lead to election administration chaos.
According to Nicholas Stephanopoulos, the Kirkland & Ellis Professor of Law at Harvard, the case will turn on the precise meaning of the word “election” in the phrase “the day for the election,” which is how an 1872 law refers to federal election day. Does it imply the day on which a ballot is cast — or received? While a federal district court upheld Mississippi’s law, the Fifth Circuit Court of Appeals reversed that decision, ruling that the relevant statutes require ballots to be in hand on election day to count.
Stephanopoulos expects that most of the Supreme Court’s justices will take a textualist approach to the dispute — that is, they will attempt to understand the so-called “ordinary meaning” of “election” in the relevant statutes in deciding whether to uphold the Mississippi law.
That will require turning to a source familiar even to grade-school students, Stephanopoulos says. “I think the Supreme Court will be inclined to look thoroughly at dictionary definitions, and to give them substantial weight.”
In an interview with Harvard Law Today, Stephanopoulos explains how the justices will think through the case — and why the stakes may not be as high as they initially appear.
Harvard Law Today: Is Mississippi unusual in giving a grace period for ballots postmarked by election day but received after that date?
Nicholas Stephanopoulos: It’s not that unusual. It is the minority position among states, but there are 13 other states with similar policies to Mississippi, where voters must cast mail-in ballots by election day, but there’s a grace period for ballots to be received by the state, to allow the post office to do its work.
HLT: What, exactly, will the Court have to decide in this case?
Stephanopoulos: Everyone agrees that Congress has the power to set the time for federal elections, including both congressional and presidential elections. Congress has passed a trio of laws that set election day as the first Tuesday after the first Monday of the month. The question the Court will have to decide is what is the meaning of “election day” — is it the point at which all votes have to be received, or is election day the point at which all votes have to be cast?
HLT: What is the RNC’s argument for why Mississippi’s law is invalid?
Stephanopoulos: The RNC’s argument is textual — “election” supposedly means both casting and receiving a ballot. And so, the argument is that the receipt of all ballots has to conclude on election day. That’s supposedly communicated by the definition of “election.” In its written brief to the Court, the RNC tries to cite dictionaries and past practice and common sense to argue that “election” supposedly necessitates the receipt of ballots on that date.
HLT: What is Mississippi’s argument for why its law is valid?
Stephanopoulos: The state’s argument — which I think is more persuasive — is that if you look at dictionaries or past practice, they’re all consistent with “election” meaning the casting of a ballot, not the receipt of a ballot. Dictionaries usually define election as something like “voters’ conclusive choice,” and voters do make that conclusive choice when they fill out their ballot and send it by election day. Voters aren’t making any conclusive choice after election day if they’ve sent in their ballot by election day.
The Supreme Court’s precedents have defined “election” in basically the same way: it’s when voters make their choice. The Court’s understanding of “election” in past cases hasn’t been about the receipt of ballots — it’s been about when voters exercise their choice.
And then there’s evidence from past practice, including substantial Civil War era precedent that supports the state’s position. A number of states now count mail-in ballots received after election day, and it turns out this was relatively common in the past. During the Civil War in particular, there were various kinds of delayed voting by soldiers in the field, where votes that weren’t received until after election day were nevertheless counted.
HLT: How is the Supreme Court likely to think through this case? What standard will it use to judge whether Mississippi’s law violates federal law?
Stephanopoulos: This is a statutory interpretation case, and the Court will likely take a textualist approach. The Fifth Circuit, in its opinion, didn’t focus that much on dictionary definitions. It thought the dictionary definitions weren’t all that helpful. But I think the Supreme Court will be inclined to look thoroughly at dictionary definitions, and to give them substantial weight. And as I mentioned before, I think the definitions cut in favor of the state’s position, not the RNC’s position.
Beyond that, the Court is also very committed to allowing states discretion over how they regulate their elections. In other areas, the current Court has been very reluctant to strike down state-level voting restrictions, citing the importance of respecting state autonomy over election regulation.
On the other hand, ideologically, the Court might be expected to be unsympathetic to mail-in voting and also unsympathetic to mail-in voting that seems to drag on for a while after election day, so that’s one impulse that will influence the Court in the other direction. But overall, I tend to think the other two factors will be more powerful in the Court’s decision.
HLT: Mississippi’s law allows for a five-day grace period, but what if a state gave 30 days for ballots to be counted? What about a year? Even if a textualist approach allows for a grace period, is there a point at which it might still violate federal law?
Stephanopoulos: Well, whether the number is reasonable or unreasonable shouldn’t matter, if this case is about textual preemption. That said, there are deadlines that apply to federal elections that may preempt counting mail-in ballots a month or more after election day. For example, at the presidential level, electors must meet to transmit states’ choices of electors to Congress, and the electoral votes need to be counted. It’s the same for Congress — the new Congress has to meet at a certain time and take office. Late-enough receipt of absentee ballots could start interfering with these deadlines. So, there’s a plausible argument that those later deadlines would preempt extremely late counting of mail-in ballots.
HLT: If the Supreme Court strikes down Mississippi’s law, what impact could it have on the state? Would it affect state elections in addition to federal elections?
Stephanopoulos: Technically, it would only affect federal elections, because the federal statutes at issue here only set federal election day, while states can run their own elections.
But I think in practice, it would very likely also extend to state elections. Mississippi would be free to have a rule that mail-in ballots must be received by election day to be counted for federal elections, but mail-in ballots received for five days after election day could be counted for gubernatorial or other state races. But I think that kind of rule would be sufficiently awkward such that it would be almost non-administrable on a practical basis.
HLT: How would striking down the law impact other states across the nation?
Stephanopoulos: It would likely invalidate the grace periods of other states as well. I don’t see how you can differentiate California or New York from Mississippi if they share this feature of counting mail-in ballots after election day.
HLT: What are the electoral stakes if the Court rejects Mississippi’s law?
Stephanopoulos: I don’t think they’re enormously high, actually. Not all that many mail-in ballots are currently received after election day, and it’s not clear what the partisanship of those late arriving mail-in ballots is. Also, if you told voters that the new deadline was that their ballot had to be received by election day, a large majority of voters would adjust their behavior and would be able to satisfy that new deadline. In other words, we shouldn’t expect huge numbers of invalidated ballots, or big partisan consequences, from such a decision.
HLT: In a broader sense, should we take this case to signal anything about the Supreme Court’s approach to election law?
Stephanopoulos: I don’t think we should read too much into the Court taking this particular case. It may be that the Court is eager to correct what it sees as an error by the appeals court.
That said, anything other than reversal of the Fifth Circuit would be very meaningful. It could mean that ideological factors — hostility to mail-in in voting, maybe prompted by President Trump or the Republican Party — is infiltrating and influencing the Supreme Court and inducing it to go against its normal commitment to textualism and federalism and state autonomy over elections. In other words, affirming the Fifth Circuit would send lots of shock waves, but reversing the lower court and maintaining the status quo wouldn’t tell me a huge amount.