U.S. Supreme Court upholds late-arriving VBMS

A U.S. Supreme Court ruling Monday preserved late-arriving vote-by-mail ballots for New Jersey and other states, rejecting a Republican challenge that could have invalidated the state’s practice of counting ballots that arrive after Election Day if they were mailed on time.

In a 5-4 decision, the court held that federal law does not prohibit states from counting mail ballots received after the polls close, provided they are postmarked by Election Day.  The ruling upholds election laws in New Jersey and 13 other states that allow a post-Election Day grace period for timely-mailed ballots.

The case arose from a challenge to Mississippi’s five-day ballot-receipt window, brought by the Republican National Committee and the Libertarian Party of Mississippi.  Republicans argued that a federal law establishing Election Day for congressional and presidential elections requires all ballots to be received by that date.

Writing for the majority, Justice Amy Coney Barrett rejected that argument. “The defining element of an ‘election’… has always been the electorate’s choice of candidate.”

“The election-day statutes say nothing about ballot receipt, and we cannot add to the words Congress chose,” Barrett wrote.

Chief Justice John Roberts joined Barrett and the court’s three liberal justices – Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — to form the majority.  Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh dissented.

“Federal law establishes a single Election Day — not an Election Week,” Alito said in his opinion.  “A ballot that has not been received by election officials cannot be said to have been cast in any legally meaningful sense.”

The ruling removes a significant legal threat to New Jersey’s vote-by-mail program, which has become a central feature of the state’s election system.  Under New Jersey law, mail ballots postmarked by Election Day are counted if they arrive within the statutory grace period: three days without a postmark, or six days later if the ballot is postmarked by 8 PM on Election Day.  New Jersey also has a ballot cure period to allow VBMs with technical deficiencies to be repaired.

Had the court ruled the other way, New Jersey and other states with similar laws likely would have been forced to stop counting thousands of ballots that arrive after Election Day, even if mailed on time.  Election officials and voting rights groups had warned that such a ruling also could have disrupted voting by military personnel and Americans living overseas.

The ruling leaves intact similar ballot receipt laws in California, Illinois, Maryland, Massachusetts, New York, Oregon, Virginia, Washington, Alaska, Nevada, Texas, and West Virginia, as well as New Jersey and Mississippi.