Lisa Dixon, CEC Executive Director

Below are Mrs. Dixon’s remarks as prepared for delivery:

Thanks, Oliver, and thanks to the Federalist Society for inviting me. We’re starting this afternoon with Watson v. Republican National Committee, which will be heard next Monday.

This case will decide the interpretation of the federal election-day statutes , three code sections that set the Tuesday after the first Monday in November as election day for presidential electors, senators, and members of Congress. These statutes are very “spare,” so this case turns on arguments over the meaning of election day.

We can think of an election as occurring in four stages: the voter marks his ballot, the voter transmits his ballot to election officials, election officials receive the ballot, and election officials count the ballot. For voters who vote in person, the first three stages happen almost simultaneously. For voters who vote absentee, the first three stages can happen days or even weeks apart. Arguments in this case turn on the third stage—when election officials receive the ballot. All parties agree that the first two stages—casting and sending the ballot—must occur by election day and that the fourth stage—counting the ballot—can occur after election day.

Like 17 states plus DC post-Covid, Mississippi allows absentee ballots postmarked by election day to be received by election officials after election day. The RNC and Libertarian Party (in separate cases that were consolidated) challenged Mississippi’s law, and two organizations, Vet Voice Foundation and the Mississippi Alliance for Retired Americans, intervened to defend the law (their arguments track with Mississippi’s, so I’ll just describe them together). The district court held for Mississippi, and the Fifth Circuit held for the challengers.

The challengers argue that by establishing the day for the election, federal law establishes that ballots must not only be sent by election day but must also be received by election day. Mississippi argues that the plain meaning of “election” is the “voters’ conclusive choice of an officer—which is made when ballots are cast,” and therefore that a ballot receipt deadline after election day meets the requirements of federal law.

In addition to textual arguments, the parties also make historical arguments. The election day statutes were enacted in 1845, 1872, and 1914, when absentee voting was limited or non-existent. The challengers argue that this demonstrates that Congress contemplated receipt by election day, as no other system was in use. Mississippi counters that the logical conclusion of this historical argument would uproot entire systems of absentee voting currently used in every state and that statutes “set in stone the electoral practices that prevailed when those statutes were enacted”.

Arguments over precedent focus on two Supreme Court precedents—Foster v. Love from 2007, which held that Louisiana’s open primary for House and Senate in October violated the election-day statutes, and RNC v. DNC from 2020, which stayed a court decision which would have required the state to count ballots postmarked after election day.

Mississippi argues that Foster holds that the “final selection” occurs when voters have marked and submitted their ballots. The respondents rely on the Fifth Circuit’s interpretation of Foster, which parses the decision into three requirements that must occur by election day – official action, finality, and consummation, which only occur when the last ballot is received.

Regarding RNC v. DNC, Mississippi argues that it recognized that ballot casting but not ballot receipt are fundamental to an election while the challengers point out that RNC v. DNC did not interpret the election day statutes.

One interesting note on this case. We’re all familiar with the Court’s desire to see cases percolate through the lower courts and how the Court often waits until there is a circuit split to grant cert on an issue. While there are a number of cases challenging post-election day receipt deadlines percolating through the lower courts, the Court granted cert on the first circuit court decision on this issue. Justices Alito, Kavanaugh, and Thomas have stated a strong preference for deciding election-related issues well in advance of an issue coming up to the Court in the heat of a contested election, though their colleagues don’t necessarily seem to share the same level of concern.

Perhaps it’s a bad sign for the 5th Circuit’s ruling, or perhaps it’s a sign that the Court wants to decide an important issue before a lot of litigation resources are spent on it. It will be interesting to see if we gain any insights via the questions on Monday as to why the Court agreed to hear this issue now.

Mrs. Dixon is the Executive Director for the Center for Election Confidence.