Supreme Court appears likely to strike down late mailed-in ballots, will impact Alaska

By SUZANNE DOWNING

March 23, 2016 – The US Supreme Court on Monday indicated its likelihood of striking down a Mississippi law allowing mail-in ballots to be counted if they are postmarked by Election Day but received up to five business days afterward, a decision that could directly affect Alaska, which has a similar but even longer grace period.

During more than two hours of oral argument in Watson v. Republican National Committee, a majority of justices signaled sympathy for challengers who argue that federal law requires ballots to be received, not merely mailed, by Election Day. The case centers on a Mississippi statute adopted in 2020 that allows ballots to arrive after Election Day so long as they are postmarked on time.

If the court ultimately agrees, the ruling could invalidate similar laws in more than a dozen states, including Alaska.

Alaska currently allows absentee ballots to be counted if they are postmarked on or before Election Day and received within 10 days for domestic mail, or up to 15 days for overseas and military voters in general elections. The rule has existed in some form for decades and was designed to account for Alaska’s geography, remote communities, and reliance on air and seasonal transport, although the need for such a delay is not proven in the current era of greater transportation options.

That places Alaska among states that permit post-Election Day receipt of ballots, the exact practice now under scrutiny at the high court.

The challengers, including the Republican National Committee and the Libertarian Party of Mississippi, argue that Congress set a single national Election Day, the Tuesday after the first Monday in November, and that ballots arriving afterward violate federal law dating back to 1845. A three-judge panel of the 5th U.S. Circuit Court of Appeals agreed, concluding that ballots must be received by Election Day.

Mississippi appealed, and the Supreme Court agreed in November to take the case.

At Monday’s court date, Mississippi Solicitor General Scott Stewart told the justices that states retain broad authority to administer elections and that voters who mail ballots by Election Day have made their choice within the federally designated time.

Paul Clement, representing the challengers of Mississippi’s law, countered that when Congress established Election Day, voting and receipt were inseparable. A ballot, he argued, is not cast until election officials receive it.

Several conservative justices appeared skeptical of extended deadlines. Justice Neil Gorsuch questioned whether voters could change their votes after Election Day if ballots were still outstanding. Justice Samuel Alito pressed Mississippi on how long states could extend deadlines without undermining the concept of a single Election Day. What if a state wanted to extend it to 20 days — would that be acceptable? A month?

But other justices pushed back. Justice Ketanji Brown Jackson emphasized that the key question is whether Congress prohibited states from setting receipt deadlines, suggesting federal law may leave that authority to states. Justice Elena Kagan pointed to modern statutes referencing a “period of voting,” implying Congress anticipated timelines extending beyond a single day.

The stakes for Alaska are significant.

Election officials in Alaska have long relied on the grace period to count votes, something that makes the state’s unique ranked-choice voting system even more complex because redistributing second-choice votes can’t be done until after the deadline passes.

Alaska officials have already taken interest in the case. The state filed an amicus brief earlier this year urging the court to consider Alaska’s logistical realities, including weather delays, limited postal service, and transportation challenges unique to rural communities.

Voting rights groups, including organizations representing Alaska Native voters, also filed briefs warning that eliminating the grace period could disproportionately affect rural voters who depend on mail voting.

A ruling striking down Mississippi’s law would likely force Alaska to require absentee ballots to be received by Election Day for federal races, potentially as soon as the November 2026 midterm elections.

Justice Brett Kavanaugh raised that timing question directly during arguments, asking whether a June decision could still be implemented this year. Clement responded that it could, noting that absentee ballots for military and overseas voters must be sent roughly 45 days before the election, giving states time to adjust.

A decision is expected by late June or early July.