The Supreme Court has handed President Donald Trump precious few losses over its last two terms. On Monday, though, five justices voted to block the Republican National Committee’s efforts to limit the window for counting absentee ballots in federal elections. It’s a commonsense decision, something that has been exceedingly rare on the court in recent years, that allows states to count ballots postmarked by Election Day but received afterward. But common sense hasn’t stopped Trump’s outlandish demands before, so it’s hard to see that changing now.
Trump has jumped on and off the vote-by-mail train over the years since his 2020 presidential election loss
Trump has jumped on and off the vote-by-mail train over the years since his 2020 presidential election loss, at times being okay with the method and at others calling it rampant with (nonexistent) fraud. He’s revived those complaints in the aftermath of California’s most recent elections earlier this month. The state has voted almost entirely by mail in recent years, with over 80% of ballots coming in via post.
The surge of ballots being processed at California post offices on Election Day means that it can take days, or weeks, for all of them to come in and be properly tallied. As a result, there can often be phantom results based on the tabulations of in-person ballots that are then quickly eaten away as more mail-in votes are counted. We saw as much during the 2020 presidential race — and despite warnings that this would be the case, the “red mirage” that eventually flipped into a Trump loss became a major rage point for Trump.
Pennsylvania Republicans attempted to challenge ballots that came in after Election Day in 2020, but a deadlocked Supreme Court ultimately allowed those votes to be counted. The Republican National Committee opted to try again in 2024, this time joining the Mississippi State GOP in challenging its state’s law providing a five-day grace period for ballots postmarked on Election Day to be considered valid. In doing so, the Republican plaintiffs claimed, Mississippi ignored federal laws that set Election Day as the Tuesday after the first Monday in November, not whenever the ballots were received.
Among the arguments in the RNC’s initial lawsuit also brought was that because more Democrats vote by mail than Republicans, it offers them an unfair advantage: “For example, according to the MIT Election Lab, 46% of Democratic voters in the 2022 General Election mailed in their ballots, compared to only 27% of Republicans… That means the late-arriving mail-in ballots that are counted for five additional days disproportionately break for Democrats.”
It’s a novel claim, especially when you consider it is primarily Trump’s fault that mail-in balloting is now considered a partisan issue.
While the deeply conservative 5th Circuit Court of Appeals saw merit to the GOP’s arguments, Justice Amy Coney Barrett did not. She authored the majority opinion overturning the 5th Circuit’s decision, finding along with four of her fellow justices that federal law as written doesn’t override states’ constitutional role in running elections. Not content to break out the Webster’s dictionary definition of “election” — “[t]he act of choosing a person to fill an office,” for the record — Barrett hammered home that just because everyone voted in person at one point in U.S. history does not magically make federal law say that all votes must be received and counted before Election Day ends.
Barrett’s decision not only should have been a foregone conclusion, but it should also silence any future challenges to states’ ability to set a grace period for ballots received after Election Day. And yet we know that’s not the case with Trump, who has already used it to push for the SAVE America Act, a bill that would make it harder for many Americans to register to vote and cast their ballots. As the president put it on social media, he believes that there should be “NO MAIL-IN BALLOTS (EXCEPT FOR ILLNESS, DISABILITY, MILITARY DEPLOYMENT, OR TRAVEL!)”
It’s ironic, though, that the court’s decision did in its own way prove why the SAVE America Act is required for Trump to get his way on mail-in voting.
It’s ironic, though, that the court’s decision did in its own way prove why the SAVE America Act is required for Trump to get his way on mail-in voting. The president signed an executive order in March attempting to place new restrictions on absentee voting unilaterally, once again attempting to snipe authority over elections from the states. If implemented, the Postal Service would be required to develop a rule allowing it to check absentee ballots against a “state citizenship list” and discard any that it found lacking. A federal judge has already blocked that order, agreeing with plaintiffs that “the Constitution does not grant the President any specific powers over elections.”
The Supreme Court’s ruling helped reaffirm that states still possess the full ability to determine their electoral processes so long as they fit within federal law. It would require an act of Congress to change what those laws say, no matter how much Trump may wish otherwise — and he does clearly wish otherwise. But while his proposed USPS workaround is still a concern, the idea that he possesses a power over elections beyond what has been afforded to him by Congress seems unlikely to go over well with these justices.
Hayes Brown is a writer and editor for MS NOW. He focuses on policymaking at the federal level, including Congress and the White House.
