When is Election Day? Is it defined as the day the ballots are marked by citizens or received by election officials. That is the heart of the question in the case Watson v. RNC, and the court’s decision will impact more than just Mississippi.
Background
We start, as most cases do, at the beginning.
The federal election-day statutes set the day for the “election” of Representatives, Senators, and the President on a Tuesday in November.
Watson, Mississippi Secretary Of State v. Republican National Committee et al.
One problem here is that the federal election-day does not include the election of President. We the People do not elect the President of the United States, the state legislatures appoint electors who do that. The states have decided to appoint said electors based on the popular vote of the people of their state. So the court is not off to a good start for this decision.
Mississippi permits certain residents, such as college students away from home and senior citizens, to vote in federal elections by absentee ballot. … Mississippi is one of roughly 30 States that count at least some absentee ballots mailed by election day but received afterward. Absentee voters in Mississippi may dispatch their ballots by mail or common carrier, and all absentee ballots must be “postmarked on or before the date of the election and received by the registrar no more than five (5) business days after the election.”
Watson, Mississippi Secretary Of State v. Republican National Committee et al.
Under Mississippi law, mail in ballots can be accepted as long as they are postmarked by election day and received within five business days after the election. Does that follow the Constitution and laws of the United States?
In 2024, the Republican National Committee, the Mississippi Republican Party, and various individuals sued the Mississippi secretary of state and several election officials, contending that federal law prevents Mississippi from counting absentee ballots received after election day. According to plaintiffs, the election-day statutes use the word “election” to refer to two acts—ballot casting and ballot receipt—so by setting the day for the “election,” these statutes set the deadline for both. The Libertarian Party of Mississippi filed a similar suit, and the District Court consolidated the cases, and then granted summary judgment to Mississippi. The Fifth Circuit reversed, holding that Mississippi’s statute is preempted because the federal election-day statutes require ballots to be received by election day.
Watson, Mississippi Secretary Of State v. Republican National Committee et al.
So the real question in this case is: Does “election day” refer to the day the ballots are cast, or the day they are received? The District Court agreed with Mississippi while the Circuit Court reversed the decision. Let’s take a look at the details of the case.
Defining Election Day
We need to remember the question before the court is pretty narrow.
The question before the Court is narrow: whether counting ballots postmarked by election day, but received up to five days later, violates the federal election-day statutes. Plaintiffs do not challenge the general practice of absentee voting, the use of the Postal Service or common carrier to transmit ballots, early voting, or the counting and certification of votes after election day. The Court also does not consider the scope of Congress’s authority to regulate federal elections.
Watson, Mississippi Secretary Of State v. Republican National Committee et al.
Well isn’t that interesting? The court has decided not to consider the scope of the very laws they are reviewing. How can the court decide whether or not Mississippi law violates federal law without determining if the law made by Congress was made pursuant to the Constitution? Otherwise, federal law would not be the supreme law of the land, and in fact should be considered null and void.
The federal election-day statutes do not preempt Mississippi’s law because the defining element of an “election” has always been the electorate’s choice of candidate.
Watson, Mississippi Secretary Of State v. Republican National Committee et al.
Is that the full definition of an election? Because according to Webster’s 1828 dictionary, an election is:
1. The act of choosing; choice; the act of selecting one or more from others. Hence appropriately,
2. The act of choosing a person to fill an office or employment, by any manifestation of preference, as by ballot, uplifted hands or viva voce; as the election of a king, of a president, or a mayor.
Election – Webster’s 1828 Dictionary
Is the act of choosing complete before the choice is recorded? In other words, is the election complete before the votes are counted? And how can the votes be counted if they haven’t even arrived yet?
And a related federal statute—the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA)— confirms that while federal law dictates when ballots must be cast, state law governs when they must be received.
Watson, Mississippi Secretary Of State v. Republican National Committee et al.
Interesting, because I took a quick look at UOCAVA, and it does generally follow state deadlines, except for when delivered by the United States Postal Service.
(3) Deadline described
(A) In general
Except as provided in subparagraph (B), the deadline described in this paragraph is noon (in the location in which the ballot is collected) on the seventh day preceding the date of the regularly scheduled general election for Federal office.
(B) Authority to establish alternative deadline for certain locations
If the Presidential designee determines that the deadline described in subparagraph (A) is not sufficient to ensure timely delivery of the ballot under paragraph (1) with respect to a particular location because of remoteness or other factors, the Presidential designee may establish as an alternative deadline for that location the latest date occurring prior to the deadline described in subparagraph (A) which is sufficient to provide timely delivery of the ballot under paragraph (1).
52 USC §203 – Uniformed and Overseas Citizens Absentee Voting Act
Even if the Presidential designee determines that the deadline isn’t sufficient for a specific location, they can choose an alternative. However, that alternative date must occur prior to the deadline of the seventh day PRECEDING the date of the regularly scheduled general election. Meaning the ballots must arrive before election day. That still leaves us with the question about when an election is completed.
The electorate’s choice is made when voting is complete, not when ballots are received. The most recent amendment to the Presidential election-day statute bears this out. While inserting the phrase “election day” into the statute and marking that date as a specific Tuesday, Congress also provided that when States “modif[y] the period of voting” in response to certain force majeure events, the term “election day” shall “include the modified period of voting.” 3 U. S. C. §21(1) (emphasis added).
Watson, Mississippi Secretary Of State v. Republican National Committee et al.
I love it when people, especially judges, contradict their own arguments. Because, as the court noted, under 3 USC §21(1), States can only modify the period of voting when the state appoints electors by popular vote (which is every state), if it is necessary by force majeure, which is:
An event that is a result of the elements of nature, as opposed to one caused by human behavior.
Force Majeur – The Free Legal Dictionary
So, under this law, states can only extend the “election day” in response to a natural or otherwise extraordinary situation. Mississippi law is not force majeure. The court also ignored the fact the law they are quoting only applies to Presidential elections.
Finally, this interpretation is consistent with the Constitution’s requirements for the electoral college. The Constitution requires the “Day on which [the electors] shall give their Votes” to be “the same throughout the United States,” Art. II, §1, cl. 4, but says nothing about the day for receipt.
Watson, Mississippi Secretary Of State v. Republican National Committee et al.
Except the quote the court took for this example is NOT election-day, but a day the electors for President and Vice-President give their votes, which is in December. The Constitution states not only that the Congress sets the day on which the Presidential Electors vote, but the day they are chosen. And that, according to 3 USC §1 is:
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
How can the states, which choose their Presidential Electors by popular vote, do so on election-day as Congress established, if their elections are not counted by that date?
The Constitution thus envisions a system in which receipt of votes is necessarily divorced from voting. And it sets the crucial, uniform day as the day of voting while leaving receipt to happen later. The federal election-day statutes follow the same pattern.
Watson, Mississippi Secretary Of State v. Republican National Committee et al.
Nothing in the Constitution divorces the act of casting a vote from its receipt and counting. Then again, nothing in the Constitution explicitly states that an election includes the casting, collecting, and counting of the ballots.
Alito Dissent
Justice Alito disagreed with the majority opinion. Justices Thomas and Gorsuch joined the opinion in full, and Justice Kavanaugh joined in part.
For more than 100 years, federal law has designated “the Tuesday next after the first Monday in November” as the day on which United States Senators and Members of the House of Representatives are “elected.” See 2 U. S. C. §7 (setting that date as “the day for the election” of Members of the House of Representatives); §1 (United States Senators “shall be elected” on that same date). Similarly, federal law has long provided that the “electors of President and Vice President shall be appointed” on that date as well. 3 U. S. C. §1.2 And because the appointment of electors in each State is now decided by popular vote, voters express their preferences for President on that same date.
Watson, Mississippi Secretary Of State v. Republican National Committee et al.
So far I think all parties agree on these facts. However, by pointing out that “electors of President and Vice President shall be appointed” on Election Day, Justice Alito does add a new twist. Although the states decide which electors to appoint based on a popular vote in the state, the state legislature is still required to appoint electors on that date, which cannot be done if they’re still waiting for ballots to arrive.
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. If the electorate were an individual, it could issue a document declaring that specified men and women were selected to fill the federal offices for which the candidates had competed, but because the electorate is a collective body, it cannot express its selections in that way. Instead, 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.
Watson, Mississippi Secretary Of State v. Republican National Committee et al.
If an election is the act of choosing, when is that choosing complete? How do we know what the collective choice of the electorate is until the ballots are not only cast, but counted? And how can they be counted if they are not yet received?
This expression of the electorate’s choices is conveyed to the responsible election officials when the collection of individual ballots is completed. 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. 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.
Watson, Mississippi Secretary Of State v. Republican National Committee et al.
According to Justice Alito, the election isn’t complete until the votes are collected; that is when they are officially cast. Which is a problem for Mississippi’s law.
In this case, we must apply this interpretation of the federal election-day statutes to a Mississippi law that requires state election officials to accept ballots that arrive up to five days after election day. 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.
Watson, Mississippi Secretary Of State v. Republican National Committee et al.
Justice Alito believes Mississippi’s law violates federal law because ballots can be accepted after election day, but there’s a bit more to his decision.
Election day is a specified date, not a span of multiple days. The election-day statutes require that federal elections occur on that date. Under the challenged Mississippi law, however, the collection of ballots continues for five more days, and therefore the “election” is not held until the end of that period. Because federal law requires that the election occur on election day, it preempts Mississippi’s statute.
Watson, Mississippi Secretary Of State v. Republican National Committee et al.
Justice Alito is wrong on one point. Federal law does not preempt state law because they are different, but because of the Supremacy Clause of the Constitution.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Constitution, Article VI, Clause 2
Is there a historical basis for Justice Alito’s position that Election Day must include both the casting and collecting of ballots?
Two centuries of historical practice reinforce the proposition that holding an “election” on a particular day means that poll workers had to receive the ballots by that date. From this country’s founding until the late 20th century, election-day ballot collection was the near-uniform practice, with only a few, late-arriving exceptions.
Before the Civil War, nearly all voting occurred in person at polling places, so election day was ipso facto the day on which poll workers collected all the ballots.
Watson, Mississippi Secretary Of State v. Republican National Committee et al.
If, at the time of the ratification of the Constitution and the passing of federal laws on the subject, an election included not only the casting of ballots, but collecting of same, it would appear that Justice Alito’s position is the correct one.
For this reason, I would affirm the decision below, which held that the provision of Mississippi law requiring acceptance of late ballots violates federal law. Because the Court reverses that decision based on a flawed understanding of the election-day statutes, I respectfully dissent.
Watson, Mississippi Secretary Of State v. Republican National Committee et al.
Which of the two positions do you think is a flawed understanding of election-day statues?
Conclusion
How did the court decide this case?
Held: The federal election-day statutes do not prevent Mississippi from counting absentee ballots postmarked by election day but received up to five days thereafter; nothing in the federal election-day statutes requires ballots to be received by election day.
Watson, Mississippi Secretary Of State v. Republican National Committee et al.
The majority of the court sees election-day as the day ballots are cast. As opposed to the dissenting judges, who wrote.
Having considered text, legal context, and historical practice, I turn to precedent. Although few judicial decisions interpret the election-day statutes, those precedents favor respondents’ position.
Watson, Mississippi Secretary Of State v. Republican National Committee et al.
The dissenters believe that election-day is not complete without the receipt of the ballots. However, since it is the majority who decide the case, their viewpoint wins the day.
The Framers recognized the difficulty of crafting election laws “applicable to every probable change in the situation of the country.” The Federalist No. 59… 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. The election-day statutes say nothing about ballot receipt, and we cannot add to the words Congress chose.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Watson, Mississippi Secretary Of State v. Republican National Committee et al.
How do I view the case? I’ve been leaning against the Mississippi law since the beginning of the case, but not primarily because of the election-day controversy. Mail-in ballots have a lot of security issues, which is why I have only mailed-in a ballot once in my life when I was out of the state for weeks before election day. With the efficacy of the postal system, I’m wondering why people need to wait until election day to cast their ballot? It’s like playing chicken with your civic duty. And since the mail-in ballots are mailed to the person one business day after they have successfully requested one, I don’t see the logic behind waiting to the last day to cast it.
On the other hand, I do see some of the logic of the majority opinion. The Constitution places the responsibility for setting the time, place, and manner of electing members of the U.S. House and Senate squarely in the hands of the states. Yes, Congress can modify most of those by law, but the idea was clearly for the states to control elections. That is what Mississippi has done, but there’s a problem. The law specifies a date for election, and does not distinguish between the cast of votes and their collection. As Justice Alito pointed out, that’s because it was only recently that there was the opportunity to distinguish between those two events. So to determine my opinion about the case. I use Occam’s Razor, the idea that the simplest solution is probably the best. Election is defined as:
The act or process of electing someone to fill an office or position.
Election – The Free Legal Dictionary
Since the act or process of electing someone to fill an office or position requires not only the casting of ballots, but their collection and counting, election day must include all three parts of the process. While the majority focuses “casting” of mail-in ballots being the day they enter the postal system, they ignore the plain definition of the term “cast” as related to ballots.
To deposit or indicate (a ballot or vote).
Cast – The Free Legal Dictionary
When someone deposits their ballot in the mail, have they truly deposited them to be counted or merely to be delivered?
Ultimately, since mail-in absentee balloting is an accommodation under Mississippi law, I do not think it an unreasonable ask to have the ballots delivered by election-day. But Mississippi gets to set its own time, place, and manner for elections for House and Senate. The real problem is the state’s duty to appoint electors for President and Vice-President by election day. That means, if Mississippi wishes to persist in a popular election to determine those electors, those ballots need to be in and counted by election-day. And since the Constitution delegates to Congress the power to determine the time of choosing electors, Mississippi cannot change that, even by law.
