High Court to take up absentee voting question

The U.S. Supreme Court has agreed to take up the question of whether states can count absentee ballots mailed on or before Election Day, but received later.

The case of Watson v. Republican National Committee is a challenge of a Mississippi law which allows ballots postmarked on or prior to Election Day to be counted, even if received after that day. 

Sixteen states, Washington, D.C., and U.S. territories Puerto Rico, Guam, and the Virgin Islands have laws that allow the counting of such ballots, according to the National Conference of State Legislatures (NCSL), while 29 states count ballots received after Election Day (but postmarked before) from Military and other overseas voters, under certain circumstances.

Until this year, North Dakota law allowed mail in ballots to be counted (not in each election precinct, but by the State Canvassing Board) as long as they were postmarked no later than Election Day, under the theory that those voters had duly cast their ballots during the time when in-person voters could cast theirs. That changed this year, when a bill sponsored by Rep. Scott Louser (R-Minot) became law. It brought North Dakota into step with the majority of states which require domestic ballots to be received by Election Day in order to be counted.

The case was brought by the RNC and Mississippi’s Libertarian Party, arguing that Congress had established a single, national Election Day and, therefore, no ballots received later should be counted. The District Court ruled in favor of the state’s law. It noted that a national Election Day was established in order to prevent undue influence from early state results, in national elections, and so that voters wouldn’t be burdened by multiple election days and held that Mississippi’s law did not thwart such objectives.

That decision was appealed by the plaintiffs and later reversed by the 5th Circuit Court of Appeals. Its ruling held that federal preemption applied because Congress had established the Tuesday after the first Monday in November as Election Day and, therefore, all ballots must be cast and received on that day.

The U.S. Constitution’s election clause says that states can establish the time, place and manner of elections but also allows for Congressional override of state laws which conflict with federal laws. The 5th Circuit, therefore, based its ruling on the Congressional establishment, by law, of a national Election Day and ruled that the Mississippi statute conflicted and that, therefore, federal law preempted it.

Mississippi appealed the 5th Circuit’s decision, noting that its finding would disrupt laws in many states and emphasizing that, as long as votes were cast by Election Day, they could be received and counted soon after in states which allowed for such a procedure in their laws. They also noted that the ruling could invalidate the provision under which many states allow the counting of votes of those in the military serving and others living overseas, which often take more time to arrive.

Sidebar: Recent attention has been drawn to the question of what sway federal circuit appeals court rulings have—whether they could bind the entire nation or merely the states within that district. The current understanding is the latter, which may mean that the Supreme Court will need to take up more cases in which rulings in a circuit conflict with laws in other states in order to settle law on a national basis.

Deeper questions and context

The Supreme Court case raises questions of federalism—whether federal law and the courts can limit an authority the Constitution reserves to the states.

The case is also being litigated after a far-reaching executive order on elections was signed by President Trump. Going farther than previous such orders issued by other presidents, it also requires all ballots to be received and all electors to be named on Election Day.

Overreach?

That raises not only the same questions of federal overreach, threatening state sovereignty, as the court case, but also others relating to separation of powers—can a president, by executive order, mandate what would appear to be an authority Constitutionally reserved for Congress?

Questions about executive overreach—presidents, governors, or mayors issuing edicts which actually function as laws, the exclusive purview of the legislative branch of government, are nothing new. The party out of power routinely accuses each president of the other party of such power grabs. The current administration has issued many orders which raise such concerns.

Executive orders were designed for, and are often limited to, instructing executive branch agencies on how to carry out their duties or exercise their authority in particular areas. Most agree that, limited to that, they’re appropriate but many are concerned when they stray from or exceed those parameters.

The Supreme Court won’t decide those questions in this case, but its ruling will be watched for its impact upon state sovereignty, federal overreach and its interpretation of Constitutional law.

The case will be heard soon. The Court’s decision will be announced no later than the end of June.

Partisans should not be quick to take sides based upon who brought the case or appealed lower court decisions. Lovers of the Constitution, federalism and the rule of law, regardless of party, should view the question through that lens.