MICHEL MARTIN, HOST:
The Supreme Court appears ready to restrict some mail-in voting. That's the sense observers got from Monday's oral arguments. Conservative justices sounded skeptical about a Mississippi law which lets ballots that are postmarked by election day be counted after polls close. Eighteen states and territories count those kinds of ballots. Amy Howe covers the Supreme Court for SCOTUSblog, and she's here to tell us more about all this. Good morning, Amy.
AMY HOWE: Good morning.
MARTIN: So this is a case brought by Republican and libertarian groups in Mississippi. What's their argument?
HOWE: Their argument is that Congress, back in the 19th century, passed laws establishing the Tuesday after the first Monday in November as election day and that everything has to happen by election day. The ballots have to be cast and received by election day so that laws like Mississippi that allow ballots to be counted as long as they are postmarked by election day - and, in Mississippi's case, received within five business days - conflict with the federal law and are invalid.
MARTIN: What did you find most significant about the way the court's conservative majority responded? I mean, obviously, I realize that, you know, we won't know until the decision actually comes out, but people often sort of read into their questions what they think the temperature of the argument is. So what did you see?
HOWE: So there was a lot of focus among the court's conservative majority on, you know, the - Mississippi's argument is that an election has two parts. There's the part where voters cast their ballots and then when an election official actually gets the ballot. And so they're saying the election has two parts and that happens when they submit it to the post office or whatever - that that is an election, and so it all happens by election day, even if they're not actually received by the state and counted until later.
But one of the other things that was really interesting to me was that there was not really a lot of discussion about the effect that rescinding Mississippi's laws and the laws of, you know, 14 other states that have similar laws to Mississippi, and then 12 other states have laws that allow at least military and overseas ballots to be counted if they arrive late - like, sort of what the big picture would be if these laws were invalidated. You know, these laws have implications for military voters, overseas voters. You know, there was an - a friend-of-the-court brief by Alaska, where so many people vote by mail because the state's population is so spread out. And, you know, there aren't roads for people to travel to the polls on the roads, and so many people's ballots arrive by plane, for example.
MARTIN: Yeah. What about that? So you're saying that there just wasn't a lot of discussion about that of what impact this could have? I mean, I'm thinking about obviously members of the military and obviously places like Alaska, where the mail is the predominant means by which people can vote. But did - was there any discussion about what this could mean?
HOWE: There was very little discussion. You know, the - really, one of the only discussions of the impact of the court's decision came from Justice Brett Kavanaugh, who asked Paul Clement, who represented the challengers in the case - well, if we were to rule for you and this decision came down in June - you know, many of the court's decisions come down in late June or early July, before the court's summer recess - you know, could states implement our decision by the general elections in November of 2026? There's a principle called the Purcell principle, which is that federal courts shouldn't interfere in states' elections too close to the election. And Paul Clement said yes. You know, military and overseas ballots, under law, have to go out 45 days before the general election. That's in mid-September, Paul Clement said, and there's plenty of time.
But there was a friend-of-the-court brief from local election officials in this case that said, you know, this is going to be chaos. We'll have to reeducate voters about new deadlines because people assume they're going to be able to do mail-in ballots and there's some flexibility around their arrival.
MARTIN: Can I just jump in? If this ruling is expected by July, that's right in the middle of primaries.
HOWE: Yes. This would not affect primaries because...
MARTIN: OK.
HOWE: ...This is a very specific law that applies to general federal elections, the - that sort of Tuesday after the first Monday in November.
MARTIN: OK. OK. But just to clarify - you only have about 20 seconds here. You're saying that this - the potential confusion that this could cause really wasn't...
HOWE: In November.
MARTIN: ...In November wasn't a really big part of the conversation. So interesting.
HOWE: Yes.
MARTIN: OK. Amy Howe is the co-founder and chief reporter for SCOTUSblog. Amy Howe, thanks so much for joining us once again. I'm sure - I'm guessing we're going to talk again about this.
MARTIN: Thanks for having me. Great to talk to you. Transcript provided by NPR, Copyright NPR.
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