High court to weigh whether ballots received after Election Day can count

The Supreme Court revealed on Monday it will consider a lawsuit, originally brought by the Republican National Committee, over whether counting ballots that arrive after Election Day is lawful.

The case will examine a state law in solid red Mississippi that allows ballots postmarked by Election Day to be counted if they are received up to five days after the election. 

The RNC, which has fought to stop late-arriving ballots over allegations that they undermine trust in the vote counting process, argues the state law conflicts with federal law and is hoping the Supreme Court will ban them nationwide.

David Becker, executive director of the Center for Election Innovation & Research, emphasized that the court would not be weighing in on the legality of mail-in ballots, which are accepted in some form in every state, or whether ballots could be cast after Election Day.

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“What this case is about is whether a ballot that was cast on or before Election Day, sealed in an envelope, placed in the U.S. Mail and received by a state some days later can be counted if a state law says that that’s okay,” Becker told Fox News Digital.

Mississippi’s rule went into effect in 2020, when many states implemented new emergency election policies over COVID-19. Well over a dozen, both red and blue, accept late mail-in ballots if they are postmarked by Election Day. 

The RNC sued over the law and secured a win at the conservative U.S. Court of Appeals for the 5th Circuit, leading Mississippi to bring the matter to the Supreme Court. The state argues “election” means voters’ final choice, which occurs when ballots are cast by Election Day. Receipt of ballots that are marked and submitted effectuates the voters’ choice but are “not part of the election itself,” Mississippi told the Supreme Court in a filing. As such, the state argues, federal law does not prohibit short, post-Election Day windows to receive ballots cast on time. 

Becker warned of repercussions that could come of the Supreme Court upholding the 5th Circuit’s ruling, saying it could invite a host of new litigation because close races could come down to ballots cast by Election Day that arrive a day or two after the election because of U.S. Postal Service delays.

“We as a society do not want a bunch of ballots coming in the day or two after, delivered late, not because of the voter but because of the Postal Service, and having those ballots being the margin of victory in a close race,” Becker said.

In a statement, RNC chairman Joe Gruters echoed broader sentiments of election security hawks who have taken issue with late-arriving ballots.

“Allowing states to count large numbers of mail-in ballots that are received after Election Day undermines trust and confidence in our elections,” Gruters said.

“Elections must end on Election Day, which is why the RNC led the way in challenging this harmful state law. The RNC has been hard at work litigating this case for nearly two years, and we hope the Supreme Court will affirm the Fifth Circuit’s landmark decision that mail-in ballots received after Election Day cannot be counted.”