Mark: It seems to me that, while the states can choose how to run the elections, there is absolutely a federal element involved in the collation and collection of votes. Just to run a hypothetical scenario: If mail-in ballots can be counted at any point (presuming they are postmarked no later than Election Day), then it’s theoretically possible that an election can never be fully decided – at least until it lands on Congress’ doorstep, right? Didn’t Justice Alito make a point on this?
Scott: Yes, Justice Alito drilled down on this point. He was rebuffed by Justice Jackson, however, who brought up current federal laws. She said laws incorporating the counting of late-arriving ballots cast by military personnel serving abroad show Congress knew about this practice and did not object.
Election Season Ahead?
Mark: While it’s never wise to try to guess the outcome in advance, can we assume that this will be decided sooner rather than later? And were any strong signals sent from the bench?
Scott: Justice Kavanaugh and Paul Clement – the lead attorney for the challengers – had an exchange right on point to your question. Kavanaugh asked him if there would be trouble if they issued a ruling in June? Clement said no, reminding the Court that this issue does not involve primaries, only general elections, and that June was far enough away from the federal election to institute any required changes pursuant to a ruling in the case.
Mark: So, if the Court rules in favor of the plaintiff, what will the immediate impact be in Mississippi and other states that have similar laws on the books? And more importantly, will we finally stop media pundits telling us the “results of this election might not be known for weeks”?
Scott: Well, sadly, no, to your last question. At least, it is not at all likely. The Court will probably not touch any question about how long counting may go on. They do seem poised to prevent the counting of any ballots received after Election Day, though. I’m sure our representatives in Congress will get together and hash out a sensible solution.
Mark: Finally, Scott, I’m wondering about your political tale on this. If mail-in ballots have to arrive by Election Day, how will this impact turnout, specifically based on the recent uptick in mail-in ballots? And do you think it would encourage people to actually turn up on Election Day to vote? And following on from that, would that historically be of benefit to a particular party?
Scott: An MIT report from its Election Data & Science Lab, titled “How We Voted In 2024,” said, “Thirty-seven percent of Democrats reported voting by mail, compared to 24% of Republicans. This is a decrease from 60% for Democrats and 32% for Republicans in 2020.” Even with that massive drop-off, it follows that if you can suppress participation by mail generally, you will favor Republicans.
Keep in mind that when this law was passed, there were Republican supermajorities in both houses of the Mississippi legislature, and a Republican in the governor’s mansion in Jackson.
Dig Deeper Into the Themes Discussed in This Article!
Liberty Vault: The Constitution of the United States
