A stack of absentee ballots in Tupelo, Miss. Thomas Wells/The Northeast Mississippi Daily/Associated Press
Mass mail voting has been bad for public confidence, and on Monday the Supreme Court can help. Mississippi law says absentee ballots that are postmarked on time are valid even if officials don't receive them from the mailman until a week later. Other states have similar rules. The question for the Justices: Does accepting tardy mail votes violate the federal law that sets a uniform Election Day?
In a series of provisions beginning in 1845, Congress fixed federal elections on a Tuesday in early November. No problem, the state argues in Watson v. Republican National Committee: "Mississippi requires that ballots for federal offices be cast -- marked and submitted to election officials -- by federal election day." If early voting is fine, and if the counting process can go on for days after the polls close, then why not the arrival of absentee ballots that were marked and mailed on time?
Mississippi suggests that once the U.S. Postal Service takes custody of any outstanding ballots, then the election's winner is already determined, however long it takes the mail to arrive and the result to become clear. "An election occurs when the voters have cast their ballots," the state says. "The voters have then chosen and their choice is conclusive: the election is over. An election thus does not depend on when ballots are received."
This is giving the reliability of the post office too much credit. In 2024 the National Association of Secretaries of State complained to the USPS that "officials in multiple states report receiving anywhere from dozens to hundreds of ballots 10 or more days after postmark."
Another flub is when ballots show up without any legible postmarks. Sometimes judges rule that if they arrive two or three days after Election Day, it can be simply presumed they were mailed on time.
In a close election, the winner might turn on these kinds of postal hiccups and the ensuing litigation. Mississippi's definition, that a vote is "cast" when it's given to the USPS, creates a Schrödinger's ballot box: The state might say the election is finished, but some candidate's political career could be both alive and dead, depending on how much mail gets misdelivered that week or whether the postmark process malfunctioned.
By the way, what makes the USPS so special? Mississippi's position lacks a limiting principle, as the challengers to its late-ballot law explain. "A State could say that a ballot is timely cast once the voter hands it over to a family member or a party operative to deliver," the Republican National Committee argues in its brief. Could states that allow ballot harvesting offer those crews a two-day grace period, as long as they quit collecting on Election Day?
The other interpretation is more straightforward. "The 'day for the election' means the day that election officials close the ballot box," the RNC says. Voting in person was historically the norm, and a ballot isn't cast until officials have it: "That was the ordinary meaning of 'cast' for decades after Congress enacted the election-day statutes, and even long after absentee voting had become ubiquitous."
Absentee voting is occasionally a necessity, and in modest numbers it isn't a difficulty, but widespread mail ballots and lax deadlines have introduced slack into the election system. Calling races in California can take nearly a month, and at some point control of Congress could depend on its dreadfully slow tallying.
Opposing that transformation of American elections doesn't require buying into President Trump's wildest fraud claims, and it needn't be partisan, since Monday's case pits the Republican Party against GOP-leaning Mississippi. If the Justices rule that federal law means the ballot box is shut on Election Day, it won't fix all of this. But it would be a start.