A closely-divided U.S. Supreme Court has handed down a critical decision on election integrity, jeopardizing the security of American elections and the sovereignty of the nation. In an opinion released Monday morning in Watson v. Republican National Committee (RNC), the court’s narrow majority ruled that mail-in ballots postmarked by election day may still be counted even if received after election day.

“Three federal statutes set the day for the election of Representatives, Senators, and the President,” Justice Amy Coney Barrett wrote for the majority. At issue is a Mississippi state law allowing ballots received by mail and postmarked by election day to be counted for up to five days after election day. The RNC argued that federal statutes preempt Mississippi’s law and require ballots to be received by election day in order to be counted. Barrett and the majority concluded that the federal statutes “do not” preempt Mississippi’s law.

Interestingly, Barrett noted that early elections were rife with fraud, due to the extended period of time (up to 34 days in some places) that ballots could be cast. “Fraud, or at least allegations of it, ran rampant — because States could hold elections on different days, voters could travel across the country, casting ballots in multiple States,” the jurist observed. So Congress intervened, establishing set dates first for presidential elections, then for elections to the U.S. House of Representatives, and finally for elections to the U.S. Senate. “Today, each of the three election-day statutes sets the day for the ‘election’ on a Tuesday in November.”

Barrett also pointed out that voting in person, as opposed to by mail, helped maintain election integrity. “Elections were lively public events, marked not only by continuous electioneering and political arguments but also by picnics, drinking, and boisterous celebration,” she recounted (internal quotations omitted). “Public assembly was not just a matter of merriment — it also helped ensure that only those qualified to vote did so. … Ballots were cast in the company of neighbors and under the watchful eyes of community leaders.” (Internal quotations omitted.)

Nevertheless, Barrett and the majority decided that federal statute does not prohibit the counting of mail-in ballots received after election day, no matter the risks to election integrity. “The question before us is a narrow one about timing,” Barrett wrote. “The federal election-day statutes do not preempt Mississippi’s law. The defining element of an ‘election’ — the term used in all three federal statutes — has always been the electorate’s choice of candidate,” she continued, rejecting the RNC’s argument that the statutory term “election” refers to both the casting and the receipt of the ballots. The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), Barrett contended, “confirms that while federal law dictates when ballots must be cast, state law dictates when they must be received.”

Barrett also addressed the RNC’s argument that counting mail-in ballots received after election day “may give rise

to the appearance of fraud because election results may appear to flip after election day,” which she admitted “is a significant concern.” The majority punted the issue to Congress. “Election fraud and its appearance are serious issues. Like other such issues, however, they must be addressed through the democratic process. The election-day statutes are proof of concept: When voting on different days in different States sparked allegations of fraud, Congress set a nationally uniform deadline for voting,” Barrett wrote. “If varied deadlines for ballot receipt similarly call for a national solution, the American people must choose it through their elected representatives.” She added that even under the RNC’s interpretation of the election day statutes, “last-minute flips are possible, because the election-day statutes set no deadline for counting ballots or certifying election results.”

“The Framers recognized the difficulty of crafting election laws ‘applicable to every probable change in the situation

of the country,’” Barret wrote, citing Alexander Hamilton in The Federalist Papers. “So instead of constitutionalizing election law, they decided that ‘a discretionary power over elections’ needed to be lodged ‘somewhere.’ Suffice it to say, that power was not lodged in this Court,” she continued. “The election-day statutes say nothing about ballot receipt, and we cannot add to the words Congress chose.”

Barrett was joined in her opinion by Chief Justice John Roberts and Democrat-appointed Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson.

Election integrity experts have warned that continuing to allow mail-in ballots to be received and counted after election day poses a serious risk of fraud, but some have also suggested that the Supreme Court’s Monday ruling is a step in the right direction and lends credence to election integrity challenges in areas where election fraud is suspected or likely.

In comments to The Washington Stand, Election Transparency Initiative chairman Ken Cuccinelli, who also served as a senior official in the first administration of President Donald Trump and as Virginia’s Attorney General, said, “From the perspective of preventing fraud, there is no question that an election-day deadline for receipt of all ballots would be the ideal state of play; however, the Supreme Court did not find that to be the law (though clearly it could be the law and be constitutional).” He noted, however, that “the Supreme Court did rule that all ballots must be cast by election day, which believe it or not, is progress on the fighting fraud front.” 

“When you look at how the banana republic we call ‘California’ operates, it is entirely plausible to vote after ‘election day,’ so the Supreme Court making it clear that that does not conform to federal law is still a (small) positive step in reducing the opportunities for fraud,” Cuccinelli added.

Ken Blackwell, a senior advisor for election integrity at FRC Action and the former Secretary of State for Ohio, told TWS, “A quick and timely ballot count backed by a transparent audit minimizes the window of vulnerability for election interferences. It strengthens public trust by delivering decisive results before misinformation spreads because of an information vacuum.” He continued, “This helps to prevent suspicion when late counted ballots create a statistical shift that looks suspicious to the losing voters.”

Chris Gacek, an attorney and senior fellow for Regulatory Affairs at Family Research Council, noted that the Supreme Court’s “disappointing” ruling essentially hinges on the assumption that mail-in ballots are being postmarked accurately and honestly. “The integrity of our elections system rests pretty much on the integrity of the placement of an official U.S. postmark on the envelope containing the ballot prior to or on election day,” he posited. “If corrupt persons gained access to the machines, could they, after an election, print falsely pre-dated envelopes with the stamps on them? Or, prior to an election, could they bank envelopes with the pre-date election-date postmarks? You don’t have this problem if you only have in-person voting,” Gacek observed. “It is worth asking what is the security and integrity that attends USPS postmark machines. In Department of Homeland Security parlance, shouldn’t such machines be critical election infrastructure?”

Justice Samuel Alito authored a dissenting opinion, which was joined by Justices Clarence Thomas and Neil Gorsuch, and join in party by Justice Brett Kavanaugh. “As the Court explains, an election is ‘the expression of the electorate’s

Choice,’ … but because the electorate is a collective body consisting of many individuals, the way in which it expresses its choice is less straightforward than would be the case if the electorate were a single individual,” Alito wrote. If the electorate were a single individual, he suggested, that individual could simply name the winners of each office in a single document. Since the electorate, however, is a body of individuals, “its choices are embodied in the collection of ballots cast by the individuals who make up the electorate. Taken all together, this collection is the equivalent of a single document declaring the winner of each race.”

“This expression of the electorate’s choices is conveyed to the responsible election officials when the collection of individual ballots is completed,” Alito wrote. “At that point, the electorate authoritatively expresses its choices, and what the election-day statutes demand is that this authoritative choice be made on election day,” he continued. “If ballots received after election day are added to the set of ballots that dictate the election’s outcome, the electorate’s choice does not occur on election day, and the federal election-day statutes are violated.”

“The acceptance of these late-arriving ballots effectively postpones the date on which the electorate’s choice is made, and federal law precludes that postponement.” Alito concluded, “Because the Court reverses that decision based on a flawed understanding of the election-day statutes, I respectfully dissent.”