Congress gets to set Election Day, at least for federal offices. But is Election Day defined as the day the votes are cast, or the day they are counted? That is the question in the case Watson v. RNC.
Election Day
The question presented by the case Watson v. RNC is often presented as straightforward.
The question presented is whether the federal election-day statutes preempt a state law that allows ballots that are cast by federal election day to be received by election officials after that day.
Watson v. RNC – Petition for Certiorari
However, as is so often the case, the details matter.
The federal election-day statutes—2 U.S.C. § 7, 2 U.S.C. § 1, and 3 U.S.C. § 1—set the Tuesday after the first Monday in November in certain years as the “election” day for federal offices.
Watson v. RNC – Petition for Certiorari
Yes, this statement is true, but again, details matter. The Constitution does give Congress some control over elections.
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
U.S. Constitution, Article I, Section 4, Clause 1
Which means 2 USC §7 is constitutional.
§7. Time of election
The Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States and Territories of the United States, of Representatives and Delegates to the Congress commencing on the 3d day of January next thereafter.
2 USC §7
2 USC §1 was added to satisfy the Seventeenth Amendment’s requirement that U.S. Senators be elected by the people of the states, and 3 USC §1 satisfies the requirement in Article II, Section 1, Clause 4 that Congress determines both the day of choosing presidential electors, and when they vote.
Here’s the rub. Congress established that “The Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election.” But is the election the casting of ballots, the receiving of ballots, the counting of ballots, or some amalgamation of all three? Once you get beyond the hype, that is the question before the court. Not whether federal law supersedes state law, but what defines Election Day.
Like all other States, Mississippi requires that ballots for federal offices be cast—marked and submitted to election officials—by that day. And like most other States, Mississippi allows some of those timely cast ballots (mail-in absentee ballots, in Mississippi’s case) to be counted if they are received by election officials a short time after election day (in Mississippi, within 5 business days after election day). Miss. Code Ann. § 23-15-637(1)(a).
Watson v. RNC – Petition for Certiorari
Is election day the day when ballots are cast, received, or counted?
Scott G. Stewart, Mississippi Solicitor General
Oral arguments began with the Solicitor General of Mississippi, Scott Stewart.
MR. STEWART: Mr. Chief Justice, and may it please the Court:
States have broad power over elections. Throughout our history, they’ve used that power to change how they hold elections. Nowhere is that change more apparent than in Election Day itself. Congress set the federal Election Day in 1845. At the time, everyone voted in person. There was no absentee voting. There was no secret ballot. Voters challenged each other’s qualifications at the polls on Election Day, and states received ballots on Election Day. Over time, states changed all those practices. They did so as Congress extended Election Day to all federal offices. They’ve done so ever since.
Watson v. RNC – Oral Arguments
Mr. Stewart starts with a history lesson. Yes, the way citizens voted in 1845 is drastically different than the way we vote today. But the question brought to the court was not so much how Mississippi conducts their elections, but whether it met the legal and constitutional requirements regarding when elections are conducted.
No one claims that in setting the federal Election Day Congress blocked most of those changes. The dispute is whether Congress blocked just one change, allowing ballots cast by Election Day to be received after that day. States have allowed that for over a century. Congress has respected it. No one challenged it until now. The question is whether Congress in 1845 blocked that practice.
Watson v. RNC – Oral Arguments
Whether or not Congress blocked the practice of receiving mail-in ballots after election day may be the question Mr. Stewart posed to the court. The better question would be what those who ratified the Constitution in 1787 thought about election day?
The answer is no. The Election Day statutes adopt a simple rule: States must make a final choice of officers by Election Day. That is the plain meaning of an election. As this Court said in United States versus Classic, from time immemorial, an election to public office has been, in point of substance, no more and no less than the expression by qualified electors of their choice of candidates.
Watson v. RNC – Oral Arguments
It seems to me that Mr. Stewart just shot his own case in the foot. If states must make a final choice of officers by Election Day, how could Mississippi possibly comply if all of the ballots are not received by Election Day? Yet Mr. Stewart claims the Mississippi law complies with this view of Election Day.
Mississippi satisfies that rule. It makes a choice on Election Day. And only that rule respects the last 180 years of state lawmaking. If Election Day must be what it was in 1845, that takes out much more than the ballot receipt laws of 30 states today. It dooms absentee voting, modern methods of voting, the secret ballot, and more.
Watson v. RNC – Oral Arguments
I think Mr. Stewart gets a little hyperbolic here. I haven’t heard anyone say that the manner of voting must be consistent with how it was done in 1845, only the timing.
Congress did not adopt that destabilizing view when it simply set the Election Day. The Fifth Circuit was wrong to rule otherwise. This Court should reverse.
I welcome the Court’s questions.
Watson v. RNC – Oral Arguments
Mr. Stewart claims the Congress did not adopt his hyperbolic view, and the Fifth Circuit got it wrong.
In the decision below, the Fifth Circuit held that the federal election-day statutes require that ballots be both cast by voters and received by election officials by election day and thus preempt Mississippi’s law.
Watson v. RNC – Petition for Certiorari
That’s one side of the argument.
Paul D. Clement, for Respondents
Next we have Paul Clement, attorney for the Republican National Committee.
MR. CLEMENT: Mr. Chief Justice, and may it please the Court:
All agree that elections for federal office have to end on the day of the election specified by Congress, and all agree that you can’t have an election unless you receive ballots, and there must be some deadline for ballot receipt. Nonetheless, Mississippi insists that ballots can trickle in days or even weeks after Election Day.
That position is wrong as a matter of text, precedent, history, and common sense. Mississippi all but concedes that the original public meaning of election included both offering to vote and the receipt of that vote or ballot by election officials.
Watson v. RNC – Oral Arguments
Mr. Clement picked up on what I saw: That Mississippi’s argument agrees that an election includes both voting and the receipt of the ballot by election officials. Interestingly, he made no mention of the requirement that a choice be made on election day.
And, of course, the key distinction between voting and an election is an election involves the combined action of voters and election officials, as this Court underscored in its decision against Foster against Love.
And, of course, Mississippi insists that at the time these statutes were passed, ballot receipt and the — the casting of the ballot were so inextricably intertwined no one would have thought of one without the other.
Watson v. RNC – Oral Arguments
Remember, in 1845 there was no such thing as mail-in balloting; that wouldn’t start for several years. However, 2 USC §7 deals with the time of elections, not the manner.
That seems to me to be a damning admission, but it also ignores the advent of field and proxy voting in the Civil War and the enormous efforts that states went to to ensure that all of the ballots, whether by proxy or by field vote, were received by Election Day. In the state’s view, all of those herculean efforts were for naught or were entirely gratuitous.
Watson v. RNC – Oral Arguments
That’s an interesting historical point. Mere years after Congress established the current election day, people started using other manners of voting, but included the requirement that ballots were received by Election Day.
Now the state’s position actually works even worse as a matter of common sense. If somebody in Gulfport the day after the election asks is the election over, the common sense answer is no, it’s not. The ballots are still coming in. And if somebody asks who won, the truthful answer is we don’t know why yet. The ballots are still coming in, and they may trickle in for weeks or months. And, in fact, they may trickle in for weeks or months with or without a postmark in differing ways in differing states.
That reality gives the lie to the idea that we have a uniform national Election Day.
I welcome the Court’s questions.
Watson v. RNC – Oral Arguments
A very good argument when Election Day includes both the casting and receiving of ballots, but there’s still a problem. Anyone remember the 2000 election? Even ballots that were received on Election Day were contested. It took until December 12 for the legal battle to end and the presidential election to be decided. But that’s not the problem in this case.
What is Election Day?
Justice Thomas and Mr. Stewart had an interesting back and forth on the question of elections and election day.
JUSTICE THOMAS: Just to be clear, you have — you said in your opening statement sometimes, you said, the decision — the choice has to be made by Election Day, and at other points, you say on Election Day. Which is it?
MR. STEWART: I — I think the statewide choice needs to make — be made by Elect — or — or on Election Day itself, when the entire electorate has voted, Justice Thomas. I think voters themselves need — need to make their individual selections by Election Day.
Watson v. RNC – Oral Arguments
Mr. Clement gave Justice Thomas a different definition of Election Day.
JUSTICE THOMAS: How would you define the day of election?
MR. CLEMENT: I would say that the day of the election is the day when — it’s the last day in which all the ballots are cast and they are received into official custody.
Watson v. RNC – Oral Arguments
Did you notice the catch? It sounded like Mr. Clement was about to say that election day is the day when ballots are cast and received, then caught himself to say the last day in which that happens. If Mr. Clements’ initial statement was correct, then all early voting would be invalid.
If we look at the two response, I think we see the heart of the controversy. Is Election Day the day the votes are cast or the day the votes are received by election officials?
JUSTICE THOMAS: So why isn’t it the rule then that the final — or the formalized decision, electoral decision, isn’t made until that’s done?
MR. STEWART: Until — until it’s submitted to the official, Your Honor.
JUSTICE THOMAS: Yeah.
MR. STEWART: I think — I mean, I think the choice is made once the voter has made — the voters as — as a whole have made an irrevocable decision by casting ballots.
JUSTICE THOMAS: What does that mean?
MR. STEWART: A final — a final choice. They’ve — they’ve cast their ballots.
JUSTICE THOMAS: Well, if — I made a final choice when I handed it to my neighbor.
MR. STEWART: But it’s a final choice within an official state process, Justice Thomas, which —
JUSTICE THOMAS: Well, I think the ballot is an official state process. Is that enough?
MR. STEWART: Not enough to be known in a public way to the state. That happens when it is parted with and submitted through — through mail to the — to the appropriate election official. Then it’s final.
Watson v. RNC – Oral Arguments
So in Mr. Stewart’s point of view, when the ballot is placed in the mail, addressed to an appropriate election official, it is considered “cast” and official. But what about common carriers? The USPS is a federal agency, but FedEx and UPS are not.
Justice Barrett took Justice Thomas’ idea and expanded on it.
JUSTICE BARRETT: Counsel, I under — I want to go back to your answers to Justice Thomas. So I understand that Mississippi’s particular rule says that it has to be deposited in USPS or with a common carrier, but I don’t understand why Mississippi’s definition in the next case would preclude a state from adopting a law along the lines of the one that Justice Thomas is proposing.
For example, if I have someone in my neighborhood in my HOA who says, listen, I’m going to take everybody’s votes in, what if the state said that’s fine; if you’ve cast your final vote and you’ve — you know, you’ve designated someone to carry your vote to — as long as it gets to the ballot box five days after Election Day, it’s fine.
Why does your definition preclude what Justice Thomas hypothesized?
MR. STEWART: Right. And I think, Justice Barrett, the answer is that submission to mail or common carrier is — is different in kind than, say, submitting it to a relative or — or sort of a neighbor in that way.
JUSTICE BARRETT: What’s the difference? They’re not government officials.
MR. STEWART: They — they are impartial third parties that have a duty to deliver what they’re owed without altering it.
JUSTICE BARRETT: But what about the definition that you’re proposing precludes that? Your definition didn’t say final as submitted to an impartial third party or final as submitted to a common carrier.
You said the final choice has been made. And there are lots of different ways, it seems to me, that you could make a final choice. And you also have the problem of this revocability from the Postal Service regulation.
Watson v. RNC – Oral Arguments
Just what makes a ballot the “final ballot?” Who could be allowed to accept a ballot that would be considered final? There was a lot of back and forth between Mr. Stewart and several justices about what he would consider valid impartial third-parties and process that would count as a “final ballot.”
JUSTICE GORSUCH: I want to ask you about the recall problem, and before I get to that, throughout your brief, you say that the — that the federal statute does require voters to submit their ballots to election officials on Election Day, must be cast by Election Day, and that the — and that the Election Day is the day to conclude and consummate the election through a final selection. You agree with all those statements in your brief?
MR. STEWART: Yes.
JUSTICE GORSUCH: Okay. But, at the same time, you say: Actually, it doesn’t have to be submitted to an election official; it just has to be submitted to a common carrier. And there’s a contradiction there that I — I just want you to first address, and then I’ll give you my hypothetical.
MR. STEWART: Very good, Your Honor. I think, when you put something in the mail, you’re not — I think —
JUSTICE GORSUCH: That’s not an election official. FedEx isn’t an election official.
MR. STEWART: Right, but the recipient certainly is the person who you’re submitting — submitting it in the mail to. I mean, that is — that is the recipient.
JUSTICE GORSUCH: Sure. Of course.
Watson v. RNC – Oral Arguments
It appears that to Mr. Stewart, sending your ballot to an election official is the equivalent of submitting your ballot to an election official. Even though there are days and numerous hands between when you send your ballot and it’s actually received by the election official.
JUSTICE GORSUCH: Well, you — I think you already answered that one. So — so here’s the hypo. Let’s say you have a state where a large portion of the electorate mails in their ballots on or close to Election Day. Not far-fetched. Many states are like that. Then the day after the election, a story breaks that one of the lead candidates engaged in an inappropriate sexual escapade or perhaps is concluding with a foreign power. Again, not far-fetched, I think. And the competing candidate immediately goes on the airwaves and urges voters to recall their ballots and — and — and to tell the common carriers not to deliver them. And many common carriers will do that with anything that you send through the — through them. FedEx, you just call them up and say I want it back.
In that hypothetical, did the election happen on Election Day? Oh, by the way, it swings the election.
(Laughter.)
MR. STEWART: So the — the election did happen on — on Election Day, Justice Gorsuch. As — as we’ve explained, our ballot does not allow using mail recall, anything like that. When somebody submits their ballot by mail, it’s final.
Watson v. RNC – Oral Arguments
Here I have to disagree somewhat with Mr. Stewart. Yes, the election happened, but its final outcome was changed ex post facto. Even if the recalled ballots do not change who wins, the election itself has been changed; the margin of victory was changed. The fact the Mississippi law prohibits the recalling of ballots, there is no way for the state to enforce that law.
Justice Sotomayor asked Mr. Clement to discuss military and overseas ballots under The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA).
Let me — let me try to address how I think you would reconcile UOCAVA with the Election Day statutes. And, to start, I think it’s important to recognize that UOCAVA is not limited to the federal general election.
So UOCAVA applies to primary elections, to run-off elections and special elections, and federal general elections. The Election Day statutes only apply to the general federal election.
Watson v. RNC – Oral Arguments
The problem is that part of UOCAVA violates Article I, Section 4 of the Constitution.
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
U.S. Constitution, Article I, Section 4, Clause 1
Congress only has the power to modify the time, place, and manner of choosing Senators and Representatives. They have no authority over primary elections, neither do they have authority over run-offs, or special elections except for those offices. Besides, when I browsed UOCAVA, none of the sections allowed ballots to be received after the date established by state law.
Presidential Elections
Justice Jackson explored questions about presidential elections. Sadly these questions showed her general ignorance about the Constitution and how the President is elected.
JUSTICE JACKSON: Can I ask you one final thing about the amicus brief from the Society For the Rule of Law Institute, because I found it very interesting, and I didn’t really know what your view of it was.
That amicus brief focused on the Electoral College and Congress’s setting it up, you know, back in 1787 with the understanding that the casting of votes can happen on a particular day and the receipt of those votes by election officials can happen on a different day.
Watson v. RNC – Oral Arguments
First of all, Congress did not setup the Electoral College. That is nothing but a made up term, generally used to mislead people about how Presidents are elected. There is no electoral college. At best you could say we have 51 “Electoral Colleges,” since the presidential electors meet in their own states to cast their votes.
And, in fact, the way the Electoral College is set up, I think, at the time, Congress permitted in nine — in 1792 about a month to elapse between the casting of votes, which, by the way, it called Election Day, and the receipt of the votes by the — the electors submitted them to the president of the Senate up to a month after.
Watson v. RNC – Oral Arguments
Again, Justice Jackson shows just how little she is aware of how we elect a President. First of all, Congress did not setup this scheme up, the Constitution did, along with the different times for the different elections that are part of choosing a President.
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
Article II, Section 1, Clause 4
Election Day is the day of choosing Electors, as established by federal law.
The electors of President and Vice President shall be appointed, in each State, on election day, in accordance with the laws of the State enacted prior to election day.
3 USC §1
The day established for those electors to give their votes is also established by federal law, in compliance with the Constitution.
The electors of President and Vice President of each State shall meet and give their votes on the first Tuesday after the second Wednesday in December next following their appointment at such place in each State in accordance with the laws of the State enacted prior to election day.
3 USC §7
These laws have nothing to do with the people voting. The fact that the state appoints electors based on a popular vote within their state is a matter of state law, not federal or constitutional. Granted, Justice Jackson was trying to compare the difference between the casting of a ballot and its receipt in the Constitution and federal law with the law in Mississippi, but I don’t think it worked, since those delays are written into the Constitution.
The Electors shall meet in their respective states and vote by ballot for President and Vice-President, … and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;
U.S. Constitution, Amendment XII
This to me is just one more example of why the nine people in this country most in need of a reading comprehension program are the justices of the Supreme Court.
Conclusion
In the United States, how do we define Election Day? Is it the day the votes are cast or the day they are collected? All of this came about over the obsession of making voting easy. though I don’t mean that voting should be excessively difficult. States’ attempts to make voting for black citizens all but impossible is part of what led to the Fifteenth Amendment, but how easy should we make voting? As Thomas Paine wrote in The American Crisis:
“What we obtain too cheap, we esteem too lightly: it is dearness only that gives every thing its value.
― Thomas Paine, The American Crisis
Have we made our right to vote so cheap that we really don’t care that much about it? I understand a situation where a person cannot be at their polling place on Election Day, and there should be some accommodation for those situations. But how far must we go? Should the default method of casting a ballot be via mail? Should a ballot not received by Election Day be counted, as long as it was mailed by it?
How difficult is it for you to mail your ballot one week before election day? Ask your mortgage company, utility company, or college if they would be OK receiving your payment after it was due, as long as the postmark was on time? If we can pay our bills on time, why cannot we cast our votes? If we can plan, month by month, to pay our bills, why not cast our votes every two years? Is that really too much to ask the American people?
But there is another consideration. You see, 2 USC §7 only applies to elections for Congress.
The Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States and Territories of the United States, of Representatives and Delegates to the Congress commencing on the 3d day of January next thereafter.
2 USC §7
And since Congress only has the power to set the time, place, and manner of elections for Congress, this law does not apply to any other election. Not elections for state and local offices, not even votes for presidential electors. Once again, our ignorance of the Constitution has turned a molehill into a mountain.
No matter what decision the Supreme Court comes to, me and my family will vote in-person whenever possible. And if we cannot, then I won’t play chicken with my vote. I will make sure it arrives in plenty of time for Election Day. Because if you think some last-minute news about your candidate will change your mind, you haven’t done sufficient research on that candidate.
