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Justice Samuel Alito cautioned on Monday that the Supreme Court’s decision to allow ballots received after Election Day to be counted could lead large sections of the public to view elections as illegitimate.
While Alito had legal concerns with the majority’s ruling, arguing that they misinterpreted when the “electorate’s choice” occurs, he closed his dissent by issuing a practical warning. Allowing late-arriving ballots to determine the outcomes of elections long after Election Day will, according to Alito, severely damage the trust Americans place in their electoral system.
“Not only is today’s decision inconsistent with statutory text, legal context, historical practice, and precedent; it also threatens to produce lamentable consequences,” he wrote. “The majority’s holding spawns a slurry of troubling election-law questions and risks further undermining Americans’ confidence in election integrity.”
SUPREME COURT RULES ON MAIL-IN BALLOTS RECEIVED AFTER ELECTION DAY
Alito went on to describe a hypothetical scenario where the outcome of a presidential election hinges on a single state that allows late-arriving mail ballots to be counted. In the scenario described by the justice, one candidate leads by 15,000 votes on election night only for the opposing candidate to slowly gain votes and, a few days before electors are scheduled to vote, pull ahead by just under 100 votes.
“If the apparent winner the morning after the election ends up losing due to late arriving ballots, charges of a rigged election could explode,” Justice Brett Kavanaugh also noted during the case’s oral arguments.
Alito didn’t simply claim that the ruling could affect how people view elections; he argued that it could open the door for fraud.
SUPREME COURT RULES ON MAIL-IN BALLOTS RECEIVED AFTER ELECTION DAY
“Today’s decision leaves open opportunities for voter fraud that may further undermine Americans’ faith in the integrity of this country’s elections. Diverse sources have recognized that mail-in ballots increase the potential for fraud,” Alito continued. “In 2005, a committee chaired by former President Jimmy Carter and former Secretary of State James Baker found that absentee voting was ‘the largest source of potential voter fraud’ in American elections.”
While instances of voter fraud carried out using mail-in ballots have been recorded, there is no evidence that widespread fraud occurred in the 2020 or 2024 presidential elections.
Democrats, meanwhile, argue that allowing states to process ballots that are postmarked by Election Day but arrive afterward, is essential to ensuring that all eligible voters have a say in who governs them.
SUPREME COURT RULES ON MAIL-IN BALLOTS RECEIVED AFTER ELECTION DAY
“I’m relieved the Supreme Court is not interfering with Washington’s mail-in ballot system,” Rep. Marie Gluesenkamp Perez, D-Wash., wrote on X. “If you work a shift job, have young kids, or live out in the woods, you can’t just knock off for the day to go stand in line at a polling place. For decades, Washington’s secure vote by mail system has made it easy for these folks to participate in democracy and make their voice heard.”
The majority, however, did not address whether allowing late ballots to be counted was good policy, stating that such a consideration is outside the scope of what the court has authority to rule on.
“Finally, plaintiffs assert that requiring ballots to be received by Election Day protects election integrity and increases voter confidence in election results,” Justice Amy Coney Barrett wrote. “As we have said time and again, however, policy arguments are properly directed to legislatures, not courts.”
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