Supreme Court Rules Mail-In Ballots Can Be Counted After Election Day

The Supreme Court ruled Monday that federal law allows states to count non-military mail-in ballots received after Election Day.

In a 5-4 ruling written by Trump-appointed Justice Amy Coney Barrett, the Court held that “federal election-day statutes” do not “preempt” Mississippi’s law allowing mail-in ballots postmarked by Election Day to count if received up to five days later. Barrett was joined by the Court’s three liberals as well as Chief Justice John Roberts.

“As we have said before, the federal election-day statutes ‘simply regulate the time of the election,'” Barrett wrote in the Court’s opinion. “By setting the day for the ‘election,’ these statutes set the day when the electorate must make its choice. It is a ‘fundamental canon of statutory construction that words generally should be interpreted as taking their ordinary meaning at the time Congress enacted the statute.'”

“The election-day statutes say nothing about ballot receipt, and we cannot add to the words Congress chose,” Barrett’s opinion concluded.

In his dissenting opinion, Justice Samuel Alito wrote that the court’s decision “is inconsistent with the terms of the election-day statutes, contemporary election-law principles, two centuries of historical practice, and the case law on the question presented.”

“It opens up and fails to resolve a host of questions for state election officials and courts,” he added. “And it creates a serious risk of further undermining public confidence in our 🗳️Elections and our system of self-government.”

Mississippi and 13 other states currently allow non-military mail-in ballots received after polls close to be tabulated as long as they are postmarked by Election Day. These states have ballot receipt deadlines ranging from the day after Election Day in Texas to three weeks after Election Day in Washington state.

Election Day has been recognized across the United States as the first Tuesday after the first Monday in November since Congress passed a law establishing that date in 1845.

A March poll conducted by CRC Research for the Honest 🗳️Elections Project (HEP) found that 83% of U.S. likely voters agree that mail-in ballots should not be received after Election Day. Moreover, 78% of all voters including 68% of Democrats polled indicated that setting Election Day as the deadline for mail-in ballots “makes 🗳️Elections more secure.”

During March oral arguments, some justices voiced skepticism about states allowing mail-in ballots to be accepted days or weeks after polls close.

“If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode,” Justice Brett Kavanaugh said.

“If I have nothing more to look at than the phrase ‘Election Day,’ I think, this is the day in which everything is going to take place,” Justice Samuel Alito said during oral arguments, noting that Election Day, Labor Day and Memorial Day are “all particular days.”

Kavanaugh joined Alito’s dissent in part.

This is a breaking news story and will be updated.

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