The Supreme Court held that federal election law does not require states to count only ballots received by Election Day. This leaves states such as California free to enact lax rules that stretch vote counting for weeks and sometimes months. Importantly, however, the court made clear on Monday that Congress may regulate how states conduct federal elections and has done so in the past. This means the current Congress can do more to safeguard elections if it can find the political will to do so.
In Watson v. Republican National Committee, a 5-4 majority ruled that Mississippi’s law permitting the counting of absentee ballots received up to five days after Election Day, as long as they are postmarked by Election Day, was not preempted by federal law. The RNC had argued that the 1872 law setting “the Tuesday next after the first Monday in November” in even-numbered years as “the day for the election” precluded the counting of ballots received after Election Day, a holding that would have upended state election laws in 14 states.
Recommended Stories
Writing for the majority, Justice Amy Coney Barrett starts where she should, with the Constitution. In this case, the relevant section is the Constitution’s Elections Clause, which Barrett notes empowers the states to prescribe the time, place, and manner of congressional elections, but also empowers Congress to “alter such regulations.” The states, therefore, have a default power to regulate elections, but Congress can override them when it sees fit.
Congress has used that power, starting in 1845, when it set a uniform Election Day for presidential elections, and then extended that rule to House elections in 1872 and to Senate elections in 1914. Congress has not limited its regulation of federal elections to timing. It has regulated voter registration through the National Voter Registration Act of 1993, which created the federal “motor voter” registration system; protected military and overseas voters through the Uniformed and Overseas Citizens Absentee Voting Act, which requires states to provide absentee ballots to Americans serving or living abroad; and imposed nationwide voting-system standards through the Help America Vote Act of 2002, which passed after the disputed 2000 presidential election.
As Barrett notes, the Uniformed and Overseas Citizens Absentee Voting Act is particularly instructive because, among other regulations, it explicitly permits states to keep their existing ballot-receipt deadlines as applied to military and overseas voters. The language of the statute, Barrett notes, is not worded as an exception to existing state ballot-receipt rules, but as an acknowledgment that states can keep their existing rules and extend them to military and overseas ballots.
“Election fraud and its appearance are serious issues,” Barrett notes. “Like other issues, however, they must be addressed through the democratic process.”
“The question today,” Barrett continues, “is not whether requiring ballots to be received by Election Day is a good or bad idea; the question is whether the idea has made its way into the United States Code.” Barrett makes a convincing argument that it has not yet done so.
The Safeguard American Voter Eligibility Act, which has passed the House but not the Senate, would improve federal elections by establishing clear national rules that make voting easier to trust and harder to manipulate. It would require proof of citizenship to register, strengthen voter-roll maintenance, require voters to request absentee ballots rather than receive them automatically, and ensure mail ballots are received by Election Day.
MAMDANI’S SOCIALIST HOUSING EXPERIMENT BEGINS
These reforms would strengthen the integrity of national elections by making it harder for noncitizens to vote, curtailing mass ballot harvesting, and ensuring election results are announced closer to Election Day, when voters still have confidence that ballots are being counted under clear and uniform rules.
The SAVE Act will probably not save the Republican Party from losing the House of Representatives, as some claim. But it is common-sense reform that would restore trust in the nation’s electoral system. Barrett’s opinion makes clear that the remedy for weak state election-administration rules is not judicial invention, but congressional action. If Congress wants federal elections to end on Election Day, it has the constitutional power to say so. Now it just needs the political courage.
