Supreme Court Worries Trump’s Attack On Late Ballots Could Also Threaten Early Voting

The Trump administration kept running into the same problem Monday as it urged the Supreme Court to stop letting states count mail-in ballots after Election Day: fears that such a move could also imperil early voting.

The Justice Department and the Republican National Committee both urged the justices to strike down a Mississippi law that allows officials to count ballots that are postmarked by Election Day but arrive up to five days later. A ruling against Mississippi could invalidate similar laws in about 30 states.

Not all justices made clear where they stood on the issue during oral arguments Monday, but several questioned whether the RNC’s position — that votes can’t be counted after Election Day — would also mean votes can’t be counted before Election Day. Millions of Americans rely on early or absentee voting.

Lawyers for both the federal government and the RNC insisted that they are not trying to end those practices.

“We agree with both sides that early voting is still acceptable,” Solicitor General John Sauer told the court, citing Civil War practices. “There could be a process where ballots are being received earlier, but that ballot box has to close on Election Day.”

That answer didn’t seem to satisfy Chief Justice John Roberts, who suggested Sauer was making an arbitrary decision to treat early voting and late receipt of ballots differently.

“I’m not sure I understand how that point is responsive to the point that if the Election Day is the voting and taking that it has to be that day,” Roberts said. “Maybe you’re not saying anything other than, well, that’s different.”

“It’s a challenging question,” Sauer replied.

Justice Amy Coney Barrett jumped in with a similar question after the RNC’s lawyer, Paul Clement, said federal lawmakers involved in passing a uniform Election Day law in 1845 would have found it “unthinkable” to count ballots after Election Day.

“Isn’t that true of early voting, too?” Barrett said. “Why is that permissible? If we’re just going to say historically it just needs to look like it always looked, how come those features fall out?”

Justice Samuel Alito gave the most voice to concerns President Donald Trump has repeatedly aired and amplified about public suspicion driven by vote tallies potentially being swayed by late-arriving ballots.

“We are moving in this direction: We don’t have Election Day any more,” Alito said. “We have election month or we have election months, early voting can start a month before the election. The ballot can be received a month after the election. “

“Some of the briefs have argued that confidence in election outcomes can be seriously undermined if the apparent outcome of the election on the day after the polls close is radically flipped by the acceptance later of a big stash of ballots that flip the election,” Alito said.

While Trump has frequently declared that he believes ballots should be tallied on Election Day and that slow counting of ballots can provide an opportunity for fraud, federal law doesn’t dictate a particular time for ballots to be counted. Yet, Alito and Justice Brett Kavanaugh raised such concerns Monday.

The liberal justices repeatedly noted that the Constitution gives states the default power to oversee elections, except where Congress has stepped in. And some warned that the court could regret concluding that a couple of phrases in the Election Day statute were intended to dictate what election practices are and are not allowed.

“Once we go down this road, once we say that these statutes which don't say anything actually have some significant preemptive effect, where are we going to end up?” Kagan asked.

The case is likely to be decided by late June, which raises the question of whether a decision invalidating late-arriving ballots, or perhaps even early voting, could disrupt this year’s elections.

Clement repeatedly noted that the federal law applies only to the general election in November. “There's plenty of time,” he said.