The U.S. Supreme Court has announced it will hear a case concerning the counting of mail ballots received after Election Day. This development follows a separate ruling by the Court, which determined that political candidates possess the legal standing to challenge election laws before voting or counting procedures commence. These actions collectively address legal challenges surrounding electoral processes.
Supreme Court to Review Post-Election Day Mail Ballot Counting
The Supreme Court announced on Monday its decision to review a case regarding the counting of mail ballots that arrive after Election Day. Approximately 20 U.S. states and territories currently allow for the counting of such ballots, typically requiring them to be postmarked on or before Election Day.
This review stems from a request by Mississippi's top election official for the Supreme Court to examine a lawsuit initiated by the Republican National Committee (RNC). The RNC's lawsuit contends that Mississippi's mail ballot grace period is in contravention of federal law. An appeals court had previously ruled in favor of the RNC, though this ruling, issued during the previous year's presidential election, was not immediately implemented.
States that implement these grace periods cite the need to provide flexibility for voters, accommodating potential delays related to postal service issues, forgotten ballot returns, or unforeseen circumstances such as severe weather or natural disasters.
The Republican Party has asserted that Congress, rather than individual states, holds the authority to determine the conclusion of elections, and that Congress established a uniform Election Day. Ahead of the 2024 election, the RNC has filed multiple legal challenges against state-level grace period laws, including in Nevada. Following these challenges, some Republican-led states, such as Utah, have rescinded their mail ballot grace periods. Former President Trump has also advocated for the nationwide elimination of these periods through executive order.
During the most recent election cycle, hundreds of thousands of mail ballots were processed by officials after Election Day. For instance, in Washington state, where a majority of votes are cast by mail, officials reported that over 250,000 ballots postmarked on time arrived after Election Day.
Candidate Standing to Challenge Election Laws
Separately, the U.S. Supreme Court ruled on Wednesday that political candidates possess the legal standing to challenge election laws prior to voting or ballot counting. This decision departed from a previous lower court ruling that had denied such standing.
The ruling originated from a case involving Illinois Republican U.S. Rep. Michael Bost and other candidates who sought to challenge an Illinois state law. This law permits election officials to count mail ballots received up to two weeks after Election Day, provided they were postmarked by the deadline. Many states have similar laws that provide a grace period for mail ballot returns.
In a 7-2 decision, the Supreme Court disagreed with the lower court's finding. Chief Justice John Roberts authored the majority opinion, stating that "candidates have a concrete and particularized interest in the rules that govern the counting of votes in their elections, regardless whether those rules harm their electoral prospects or increase the cost of their campaigns." Justice Amy Coney Barrett issued a concurring opinion, joined by Justice Elena Kagan. Justices Ketanji Brown Jackson and Sonia Sotomayor dissented.
In her dissent, Justice Jackson argued that the court was granting candidates the ability to sue in advance of provable harm, a right generally not afforded to most voters. She emphasized that the interest in a fair electoral process is common to all voters and that political candidates should adhere to the same actual-injury requirements as other litigants.
Reactions to the decision varied:
- Justin Riemer, president of the conservative group Restoring Integrity and Trust in Elections, described the decision as "a major win for the rule of law in our elections."
- Conversely, Wendy Weiser of the Brennan Center for Justice expressed concern that allowing candidates to challenge laws without proving harm could lead to an increase in lawsuits, potentially undermining election confidence or disrupting results.
- Legal scholar Richard Pildes of NYU School of Law supported the decision, stating it "will advance the important systemic interest in having the legality of election laws resolved in advance of elections." He noted that waiting until actual harm is provable creates "fraught circumstances" by delaying legal resolution until after voting or counting is complete.