WASHINGTON — Californians may be forced to put their ballots in the mail well before election day to be certain they will be counted.
That’s the likely outcome of a Republican challenge to mail ballots that came before the Supreme Court on Monday.
The court’s six conservatives sounded ready to rule that federal law requires that ballots must be received by election day if they are to be counted as legal.
In the 19th century, Congress set a national day for federal elections on a Tuesday in early November, but it did not say how or when states would count their ballots. The Constitution leaves it to states to decide the “times, places and manners for holding elections.”
California and 13 other states count mail ballots that were cast before or on election day but arrive a few days late. And most states accept late ballots from members of the military who are stationed overseas.
By law, California counts mail ballots that arrive within seven days of election day. In 2024, more than 406,000 of these late-arriving ballots were counted in California, about 2.5% of the total.
Other Western states — Washington, Oregon, Nevada and Alaska — also count late-arriving mail ballots.
But President Trump has repeatedly claimed that voting by mail leads to fraud, and the Republican National Committee has gone to court to challenge the state laws that allow for counting the legally cast ballots of citizens which are postmarked on time but arrive late.
GOP lawyers argued that the phrase “election day” has always meant ballots must be in the hands of election officials on that day. In their questions and comments, all six conservatives agreed.
Justice Samuel A. Alito Jr. saw a real prospect of fraud. There could be “a big stash of ballots” that arrive late and “flip the outcome,” he said.
Democrats and election law experts say that the proposed new rule conflicts with more than a century of practice because most states allowed for some people to vote by mail if they were traveling on election day. They argued that election day is like the federal tax day of April 15. While tax returns must be postmarked then, the tax returns are legal even if they arrive at the Internal Revenue Service a few days later.
The GOP filed its challenge in Mississippi which accepts ballots that arrive up to five days after election day. A district judge rejected the claim, but a 5th Circuit Court panel with three Trump appointees ruled that ballots are illegal if they are not received by election day.
The case before the court is Watson vs. Republican National Committee.
California has been criticized for taking weeks to count all the votes but that issue was not raised in this case.
