The Patriot Post® · Election Day Means Election Day, but Congress Has to Say So

The Supreme Court’s surprising decision in Watson v. Republican National Committee is a good example of the difference between what may be good election policy and what the Constitution or federal law actually requires.

On Monday, the Court held that Mississippi may continue counting certain absentee ballots received after Election Day, so long as those ballots are postmarked on or before Election Day and received within the state’s five-business-day deadline. The challenge, brought by the Republican National Committee and others, argued that federal law requires ballots in federal elections to be both cast and received by Election Day.

The Court disagreed.

At first glance, the argument against Mississippi’s law sounds like common sense. Election Day is Election Day. Federal law sets a uniform day for the election of president, senators, and representatives, and ballots should be in the hands of election officials by that date. Late-arriving ballots create confusion, distrust, and the appearance that an election is changing after voting has supposedly ended. One in five mail-in voters admitted to ballot fraud in 2020.

To put it mildly, those concerns are very serious.

Policy-wise, I agree with them. Absentee voting should be limited to rare or necessary circumstances, not treated as a complete replacement for in-person voting. There is real value in having a clear Election Day and a strong policy argument that ballots should be received by then.

But that does not automatically answer the legal question.

The question before the Court was not whether Mississippi’s rule is wise. It was whether federal election statutes clearly prohibit a state from counting ballots that were mailed by Election Day but received afterward. That is a much narrower issue.

Justice Amy Coney Barrett’s 5-4 majority opinion focused on that distinction. The Court held that the federal statutes set the day by which the voter must make his choice. Mississippi’s law still requires that choice to be made by Election Day because the ballot must be postmarked by then. What comes later is receipt, processing, and counting. Congress did not clearly say that all of those steps must also be completed by Election Day.

Even though I believe Election Day should mean more than simply casting ballots, I also understand the logic behind the other side’s argument. Concerns about election integrity are real, and they should not be dismissed. But that does not mean every opposing legal argument is irrational.

There is a strong policy argument that ballots should be received by Election Day. But there is also a fair legal argument that, if a voter has completed and mailed his ballot by Election Day, then his act of voting has already occurred. If courts were to require receipt by Election Day, they would effectively be adding a deadline Congress did not clearly write.

If every absentee ballot had to be received by Election Day, absentee voters would not really have Election Day as their deadline. Their practical deadline would be several days earlier, depending on the mail system, their location, and circumstances outside their control. For someone who cannot vote in person, Election Day would effectively arrive before Election Day.

That does not mean states must accept late-arriving ballots. It does not mean there is some constitutional right to have a ballot counted after Election Day. It simply means that, unless Congress clearly says otherwise, states may choose that policy for themselves.

That is the most important part of the ruling. The Court is not saying Mississippi has a constitutional right to count ballots after Election Day. It is only saying that the federal statutes, as written, do not clearly forbid Mississippi’s rule.

In cases like this, judicial restraint is usually the right outcome. When the legal answer is not obvious, courts should be careful before turning a policy disagreement into a federal command. Congress has the power to act. If Congress wants a national rule requiring all federal ballots to be received by Election Day, it can pass one. If states want stricter receipt deadlines, they can adopt them.

But courts should not impose that rule themselves.

That brings us to the real problem. As in so many other cases, Congress is ultimately the branch responsible for deciding a policy matter that is common sense and should be implemented. But Congress will not do anything.

Congress has become weak, inactive, and unwilling to use the authority the Constitution actually gives it. Republicans in Congress especially need to straighten up because this branch has consistently failed to perform the way it should, particularly during President Donald Trump’s second term.

That should concern every conservative. A weak Congress does not simply mean fewer conservative policies get passed. It means power shifts elsewhere, usually to the courts, the executive branch, or the bureaucracy. Then Republicans act surprised when unelected institutions decide questions Congress should have resolved itself.

This is also why the midterms matter so much. We already see how ineffective Congress can be even when Republicans control it. But imagine a Congress that is not merely inactive but actively working against the president. A weak Republican Congress is frustrating. But a Democrat Congress determined to weaponize its power against President Trump would be far more dangerous.

Conservatives can choose to place the blame on Amy Coney Barrett. That’s not new. And look, she is definitely not my favorite Supreme Court justice. I dislike many of her decisions, and at times she seems more like a law professor than a justice willing to make hard constitutional calls.

But in this case, the blame belongs elsewhere. The real failure is Congress. Congress can change the law. Congress can set a clear national rule. Congress can require ballots in federal elections to be received by Election Day.

But Congress consistently refuses to act.