The Supreme Court may be on the verge of injecting needless chaos and uncertainty into the midterm elections and beyond. That possibility was on display Monday, when the court heard a GOP-backed challenge to counting mail ballots that come in after Election Day, even if they’re postmarked by Election Day.
Mississippi, which has a five-day grace period, is defending its law against the Republican National Committee and the Trump administration.
The state’s solicitor general, Scott Stewart, told the justices that accepting the GOP position would prompt chaos, upending the ballot-receipt laws of 30 states and calling into question modern voting practices generally.
“Congress did not adopt that destabilizing view when it simply set the Election Day,” said Stewart, who clerked for Justice Clarence Thomas and argued for the state in the Dobbs case that overturned Roe v. Wade.
And yet, the high court is considering endorsing that destabilizing view, which has been pushed by the RNC and backed by the federal government in their effort to disqualify later-arriving ballots. There’d be no reason for those parties to advance that position if they thought it would hurt Republicans’ electoral prospects.
President Donald Trump has railed against mail ballots. He has also made unproven voter fraud claims a centerpiece of his elections stance. That dynamic was at play at Monday’s hearing, during which Stewart noted that the federal government has “sounded the antifraud theme” but still could not show “a single example of fraud from post-Election Day ballot receipt in this century.”
Justice Samuel Alito, who sounded likely to side with the Republicans, seemed receptive to the “fraud” narrative, as he cited arguments that “confidence in election outcomes can be seriously undermined if the apparent outcome” of an election “is radically flipped by the acceptance later of a big stash” of ballots.
Justice Brett Kavanaugh asked about fraud, too, wondering, “Is that a real concern? Is that something we should be thinking about? Confidence in the election process?”
The Trump appointee also asked the RNC’s lawyer, Paul Clement, if it would create any problem to issue a decision in June (when the term’s final rulings typically come in) that changes state laws just months ahead of the midterms. Unsurprisingly, Clement said no, stating that would leave “plenty of time.”
Timing aside, it remains to be seen what the court will decide. There was an overall party-line split in the questioning at the hearing, though Chief Justice John Roberts and Justice Amy Coney Barrett may hold pivotal votes in the relative center of the dispute.
As Kavanaugh’s question on timing indicated, the court is expected to rule by early July, though, in this case, perhaps not much longer before then.
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