What the Supreme Court’s Mail Ballot Decision Doesn’t Mean

Election officials in 14 states breathed a sigh of relief on Tuesday when the Supreme Court ruled in favor of the status quo in Watson v. Republican National Committee. The case assessed a Mississippi law that permits mail ballots to be received by election administrators five days after election day so long as the ballots are postmarked by election day.

This and other similar state laws, the 5–4 majority ruled, are not preempted by federal law.

Had the court ruled in favor of the RNC, as the 5th Circuit had previously, election administrators in 14 states would have had to scramble to print new election materials and educate voters about the abbreviated deadline. Election officials also would have faced tricky legal questions, such as what to do with ballots arriving after election day. Do they count the state and local contests on the ballot but not the federal ones? Or produce two sets of election materials—one for state and local contests, one for federal—for every registered voter?

Because the court avoided upsetting the apple cart, you might think that online reactions would be somewhat muted. Instead, extreme reactions and bad takes abounded, many of them not rooted in fact. Let’s dig into some of the misguided and misinformed claims about the implications of the court’s decision.

Watson keeps the federal government out of election law.

That’s wrong. A large number of Democratic elected officials quickly took to social media to celebrate that “states administer elections, not the federal government.” This is more than a bit rich coming from the party that in 2021 tried to use federal power to pack elections full of liberal voting laws (“H.R. 1: For the People Act”).

It’s also an inaccurate read of Watson. The court held that federal law doesn’t currently preempt state laws that provide a post-election day grace period. But the court didn’t decide that the federal government can’t create a law to prohibit such grace periods. Should Congress want to end post-election day grace periods, Watson won’t stop it.

The decision means states like California can continue to take weeks to count ballots.

So wrote conservative political commentator and Fox News contributor Nick Sortor. However, Watson addressed receiving mail ballots after election day, not counting ballots after election day. The RNC’s lawsuit against the state of Mississippi did not seek to limit the time period for counting ballots. President Donald Trump also seemingly confused that detail, posting on Truth Social, “the Supreme Court … allowed [ballots] to be counted LONG AFTER an Election is over…”

Every state tabulates ballots after election day, and it has been that way for a long time. In many states, it takes more than seven days to count all the ballots in a statewide election. That’s true for states that allow grace periods and for states that don’t allow grace periods. In my home state of Arizona, ballots must be delivered by the close of election day (no grace period). Nonetheless, Arizona always counts ballots more than a week after election day in a statewide election because hundreds of thousands of Arizonans drop off their ballots on election day. 

Furthermore, a ruling in favor of the RNC would have had little impact on the comparatively slow count in California. In that state’s recent primary, only 3 percent of the vote in Los Angeles County arrived after election day. The far bigger challenge for Los Angeles County is the 31 percent of the total vote that comes from mail ballots dropped off on election day. Those votes would be valid even if the Supreme Court had ruled for the RNC. Mail ballots dropped off on election day cannot be retrieved until that evening, then they must be scanned in, the signature verified, and the vote tabulated and adjudicated before being reported. This is what California election expert Kim Alexander calls the “pig-in-the-python” effect. It’s what currently prevents California from having more than, say, 85 percent of results available 48 hours after election day

The SAVE America Act would remedy the issues in Watson.

Many Republicans, including President Trump, reacted to their perceived loss in Watson with renewed calls for passing the SAVE America Act. In a social media post with over 27,000 likes, political commentator Eric Daugherty wrote the Supreme Court decision “ONLY PROVES WE NEED THE SAVE AMERICA ACT” (emphasis his).

The SAVE America Act focuses on documented proof of citizenship for voter registration and requires voter identification at the polls. The version of the bill passed by the House does not include any language about mail ballot deadlines. Proposed amendments, such as the one by Sen. Eric Schmitt of Missouri, would address Watson by requiring that all mail ballots be returned on election day, but Schmitt’s amendment would also limit mail voting to those in the military, people who are ill or traveling, and voters with disabilities. That will be a hard sell, even to some Republicans.

The RNC and the four dissenting justices sought to ‘limit voting rights and ballot access.’

That gross exaggeration came from Gretchen Whitmer, the Democratic governor of Michigan, who wrote on X, “Today, the Supreme Court stopped Republicans’ blatant attempt to undermine voting rights …”

Whitmer should know that Michigan does not allow mail ballots to arrive after election day, even if mailed on election day. The RNC’s litigation in Watson sought to make all states like Michigan. Does Michigan undermine voting rights? 

In pursuing Watson, the RNC targeted a left-wing plot.

Rep. Abe Hamadeh of Arizona took a saturnine view of Watson: “The Left learned after the Supreme Court failed to stop the 2020 steal that they could weaponize mail-in ballots with zero consequences.” Hamadeh seems to have no problem suggesting that Chief Justice John Roberts and Justice Amy Coney Barrett, Republican appointees who joined the five-justice majority on Watson, are complicit in this leftist plot. 

But the map of states with a post-election-day grace period doesn’t cleanly support Hamadeh’s position; it’s a mix of red and blue. Yes, California, New York, Washington, and Oregon have grace periods. But so too do Mississippi (where the case originated), Texas, Nevada, Alaska, West Virginia, and Virginia.

Watson opens the door to election fraud.

Trump, Elon Musk, and MAGA political pundit Benny Johnson all alleged that Watson facilitates massive election fraud. More strikingly (because those three allege massive election fraud seemingly on a weekly basis), Justice Samuel Alito, in the last section of his dissent (section IV. B.), also invokes the specter of fraud: “Finally, today’s decision leaves open opportunities for voter fraud that may further undermine Americans’ faith in the integrity of this country’s elections.” 

To support such a bold statement, Alito points to a number of 20-year-old studies that acknowledge a greater risk of fraud from mail voting, including a report from a 2005 commission led by former President Jimmy Carter and former Secretary of State James Baker. Alito conveniently omits the fact that Carter later praised the security of mail voting and asked people not to mischaracterize the 2005 study. The only recent source cited by Alito is an explainer from the MIT Election Data + Science Lab website that acknowledges some administrative challenges connected to mail voting. But that same MIT website is replete with studies that have shown the non-existence of material fraud in mail ballots, none of which Alito cites.

But even if we accept Alito’s assertion that mail voting is less secure than in-person voting, the justice offers no evidence and no citation for why accepting mail ballots after election day is less secure than ballots received by election day. All mail ballots go only to registered voters. All ballots must be returned to election offices in a barcode-tracked return envelope assigned to that specific voter. Both mail ballots delivered before election day and mail ballots arriving after election day have to be signature-verified. There’s no reason why the difference in a day or two would affect the security of mail ballots, just as mail ballots that arrive 10 days before election day versus five days before would be no less secure.

What does all of this mean as we head into the November midterm elections? For election administrators, it means one fewer wrinkle in their election planning. For voters, it means the voting process remains the same, so most of them will quickly forget about Watson. But for the president’s most committed supporters and election integrity skeptics, Watson is perhaps one more reason—even if pretextual—for the federal government to intervene in election administration at an unprecedented level.