Reader Question: Legal Justifications For Not Counting "Late" Ballots
Sean from California: What is the substantive legal argument being made to prevent the counting of ballots received after Election Day, even if they are postmarked by Election Day?
The issue isn’t that counting ballots received after Election Day is itself illegal — in California, for instance, the deadline to receive ballots, as long as they’re postmarked by Election Day, is Nov. 20. The legal question that’s being worked out in the courts right now is who gets to decide what the deadline should be: state legislatures, federal courts or state courts? The legal fights we’re seeing are the result of disagreements among state officials or between state officials and federal or state courts.
In Wisconsin, for instance, state law says that ballots must be received by 8 p.m. on Election Day in order to be counted. Democrats and other groups sued the state over that law, and a federal district court judge extended the deadline by six days. That ruling was then blocked by a federal appeals court, saying the decision amounted to judicial interference. And the Supreme Court eventually agreed, refusing to allow the trial court’s extension to go into effect.
In his concurring opinion, Chief Justice John Roberts said it was the fact that a federal court had intervened to change the deadline that made the difference in the Wisconsin case. Compare that to a similar battle in Pennsylvania, where it was the state Supreme Court that approved a ballot extension deadline under the state constitution. Roberts explained in his Wisconsin opinion that things are different when the question has to do with state courts’ authority to apply their own constitutions to election regulations. (Notably, the other four conservatives on the court seemed to disagree. The Pennsylvania case has returned to the Supreme Court, so Justice Amy Coney Barrett, who was just sworn in yesterday, could in theory cast a vote for a different outcome.)
A final case to watch: In North Carolina, the state Board of Elections and attorney general’s office have tried to extend the ballot deadline, over the objections of Republican lawmakers. The battle has been unfolding in state and federal court, and a federal appeals court recently upheld the new deadline. The question, of course, is whether the Supreme Court will agree.