The Supreme Court is hearing a mail-in ballot case that could impact the midterm elections

Jeff Bennett:

The U.S. Supreme Court today heard arguments in a case that could reshape how millions of mail-in ballots are counted in next fall’s election.

Our case reporter, Ali Rogin, has more on the legal background that followed.

Ali Rogin:

Jeff currently allows election officials in 14 states and the District of Columbia to count mail-in ballots that arrive after Election Day, as long as they are postmarked by Election Day. But the Republican National Committee is challenging the measure, arguing it undermines confidence in elections.

In today’s arguments, the justices appeared divided along ideological lines.

Samuel Alito, SCOTUS Associate Justice:

Memorial Day, Labor Day, George Washington’s Birthday, Independence Day, Christmas, and Election Day are all designated days. So, if we start with that, if I have nothing more to look at than “Election Day,” then I think that’s the day it’s all going to happen.

Ketanji Brown Jackson, SCOTUS Associate Justice:

The idea of ​​casting votes by Election Day and counting them after Election Day existed, right? I mean, it’s not like we’re talking about something completely new coming out of Mississippi from the standpoint of no one having had a ballot deadline after Election Day before.

Ali Rogin:

If the court sides with the Republican National Committee, it could dramatically change voting rules just months before this year’s midterm elections.

To learn more about the fight over mail-in voting, I’m joined now by Nate Persily, an election law scholar at Stanford University.

Nate, thanks so much for being here.

What is the basic argument here? Why are Republicans fighting this law?

Nate Persily, Stanford Law School:

Well, what Republicans are saying is that there is a federal law that schedules elections to a certain day, so they suggest that any ballots received after that day should not be counted because federal law trumps state law, in this case, Mississippi law.

Ali Rogin:

How did this become a partisan idea? Is there a partisan preference for voting by mail in one party over another?

Nate Persily:

In the past decade, we have seen partisan polarization on the issue of mail-in balloting, in large part because Donald Trump has made a central part of his election reform agenda and his claims of widespread fraud, suggesting that mail-in voting is inherently insecure.

And so I’ve seen that Republicans are generally more restrictive on mail-in voting issues and Democrats are more liberal. I must say that this is not uniformly true. Places like Utah, a majority Republican state, have mail-in voting.

So both Republicans and Democrats use this as a way to cast their votes.

Ali Rogin:

If the court rules against this state law, what happens with elections in the fall? Does anything change immediately?

Nate Persily:

Well, we’ll see how they express their opinion. One expects this decision to be made around June. This would certainly hamper a lot of state election planning.

But what that means is that states won’t be able to count votes yet — if they are received after Election Day. So they will have to change some of their state laws. And you may actually have a situation where in some states they count votes for state offices like governor after Election Day, but they won’t be able to count congressional races after Election Day.

Ali Rogin:

right. That was a big part of the argument as well, whether it was state elections or federal elections.

We heard a lot today about what defines Election Day and that conversation included a lot of talk about things like early voting. Is there a possibility that this court ruling will extend beyond mail-in ballots and have far-reaching implications for how we administer elections?

Nate Persily:

Well, one of the problems with the Republicans’ arguments here is that if you really believe that the casting and counting of ballots should happen in one day, that seems to affect not only ballots being received after that day, but also ballots being cast in advance.

However, they said: No, they will not take this argument that far. So everyone involved in the case agreed that early voting, meaning casting ballots and turning them in to election officials before Election Day, would still be allowed.

But whether – these kind of liberals on the court are trying to say that, look, if you really believe that Election Day means Election Day, then that should apply to counting ballots and casting votes before Election Day as well.

Ali Rogin:

How does this case play into the Supreme Court’s broader efforts to reshape election law? To what extent is the Supreme Court responsible for policy making here where Congress also has a role to play?

Nate Persily:

Well, that’s a very good point to make, which is that this is a legal issue. The only question in this case is whether the federal law passed by Congress conflicts with a state law passed by Mississippi that would allow ballots to be received and counted after Election Day.

And so everyone agrees that Congress could have clarified that to make it clear that you can’t receive ballots after Election Day. The question is whether there is an obscure law declaring Election Day to be a certain Tuesday in November, and whether that says something about the ability to count votes after the fact.

Ali Rogin:

Of course, at the same time, Congress is talking about the SAVES Act, which is a huge priority for President Trump and will greatly impact the way Americans can vote.

What’s the context here in terms of one of these battles being fought in the Supreme Court and the other making its way through Congress?

Nate Persily:

Well, the Conservation Act includes provisions for mail-in balloting, but it goes much further than that. It deals with things like voter ID at the polling place, as well as citizenship requirements for registration.

So one of the questions here is whether Congress would be able to basically go further than what those in this case are proposing about having some kind of larger federal law that would replace a lot of the state laws in terms of voter access and ballot casting and ballot counting.

Ali Rogin:

Nate Persily from Stanford University, thank you so much for explaining this to us.

Nate Persily:

Thanks for having me.