Susan Shelley: The Supreme Court could make election night great again
California counts votes very slowly. While many other states and even other countries can tally ballots and report totals on election night, Californians have become accustomed to waiting an entire month before the winner is known in close races.
One reason for this is a state law that requires all 58 counties to accept late-arriving mail ballots for seven days after the polls close. But that could be about to change.
Federal law (2 U.S. Code Section 7) states that there is one “day for the election.” That law may preempt dozens of state laws that say ballots cast on election day must be accepted days or weeks later. The question is, who has the right to sue over it?
Now we know: any candidate for federal office. On Wednesday, the U.S. Supreme Court held that candidates have “standing” to file a legal challenge to “the rules that govern the counting of votes in their elections, regardless whether those rules harm their electoral prospects or increase the cost of their campaigns.” Chief Justice John Roberts wrote, “Their interest extends to the integrity of the election — and the democratic process by which they earn or lose the support of the people they seek to represent.”
Did the Supreme Court just tell us that late-arriving mail ballots are a threat to election integrity? This could get interesting in a hurry.
The decision broke new ground. Previously, the courts treated candidates like everybody else, holding that none of us have “standing” to challenge election rules because they affect all of us in the same way.
“Standing” is the legal threshold that must be met in order for a case to go forward in the courts. It requires a “concrete and particularized injury,” some kind of harm that is different than what the general public is experiencing. For example, if something is horribly wrong with election rules or with government in general, ordinary voters and ordinary taxpayers are all suffering the same injury, so nobody has standing to sue over it.
Taxpayers are still out of luck, but candidates for Congress won a big victory as the justices ruled 7-2 in favor of Illinois Republican Congressman Michael Bost. He sued in federal court over an Illinois law that allows mail ballots cast by election day to be counted even if they arrive 14 days after the polls close.
Given the history of Illinois politics, the law might be reanimating the ancient political strategy known as “waiting to find out how many votes we need.”
Chief Justice Roberts’ majority opinion was joined by Justices Thomas, Alito, Gorsuch and Kavanaugh. Justice Amy Coney Barrett wrote a separate opinion, joined by Justice Kagan, that agreed with the result but argued that a candidate’s interest in election integrity should not be the issue. She said the candidate’s particularized, concrete injury is financial, due to having to pay the campaign staff for two extra weeks.
In dissent, Justice Ketanji Brown Jackson, joined by Justice Sotomayor, wrote that a candidate’s interest in election integrity is not greater than that of an ordinary citizen unless they can show that the election rule in question affected the outcome of the race.
Roberts responded that asking courts to evaluate the political effect of election rules would require judges to become “political prognosticators.”
Rep. Bost will now get his day in court to challenge Illinois’ law, but his lawsuit is not the only case about late-arriving mail ballots. There’s also Watson v. Republican National Committee. In that case, the RNC and others sued over a Mississippi law that allowed mail-in ballots cast by election day to be counted if they arrived up to five business days after the polls closed.
A U.S. district court in Mississippi ruled that political party organizations did have standing to challenge the five-day “grace period,” but then the court rejected the challenge and upheld the law.
When the case reached the Fifth Circuit Court of Appeals, the law was struck down.
Mississippi appealed to the U.S. Supreme Court. “The question presented,” the state’s petition said, is whether federal laws “preempt a state law that allows ballots that are cast by federal election day to be received by election officials after that day.”
In November, the justices announced that they would hear the case. There could be a decision by early July.
California is one of about 14 states that allow late-arriving, domestically mailed ballots to be counted even if they arrive after election day. Approximately 15 more states allow late-arriving military and overseas ballots to be counted.
All these states require the late-arriving ballots to be cast on or before election day, but how is that verified? In California, the Secretary of State’s regulations (CCR Title 2 Section 20991) state that a voter’s ballot is valid even without a postmark or delivery service record if “the voter has dated the vote-by-mail ballot identification envelope.” A pen is as legal as a postmark. That’s the law in California.
But maybe not for long.
“As a candidate for office, Congressman Bost has standing to challenge the rules that govern the counting of votes in his election,” the chief justice wrote.The Illinois case could eventually come back to the Supreme Court on appeal. And perhaps California candidates will file lawsuits of their own.
A ban on counting late-arriving ballots in elections for a federal office would affect nearly all elections, because all 435 seats in Congress are on the ballot every two years. Removing election integrity risks in federal races would also clean up state and local races on the same ballots.
Prior to 2016, California required all ballots to be received no later than election day. Then a three-day grace period was implemented, expanded to 17 days for the 2020 election, dialed back to the current seven days and made permanent.
This ten-year experiment could be ending soon. The Supreme Court could make election night great again.
Write Susan@SusanShelley.com and follow her on X @Susan_Shelley