Watson v. Republican National Committee

Overview

A case in which the Court will decide whether federal election-day statutes preempt a state law that allows ballots cast by federal election day to be received by election officials after that day.

Facts

Mississippi law permits mail-in ballots cast by Election Day but received up to five business days afterward, so long as they are postmarked by Election Day, to be counted. The Republican National Committee challenged this practice, arguing that federal statutes fix Election Day as the single day on which federal elections must be completed, preempting state laws that allow post-Election Day receipt of ballots.

Issue

Whether federal statutes setting Election Day as the day for choosing presidential electors and members of Congress preempt a state law permitting mail-in ballots postmarked by Election Day but received up to five business days later to be counted.

U.S. Constitution

Art I, § 4 for congressional elections, state legislatures prescribe Time Place & manner. Congress may override most of those choices.

Art II, § 1 for presidential elections, state legislatures may direct the manner of appointing electors to vote for president and vice president.

Hamilton on Elections

Power resides with states “primarily” and congress “ultimately” for Congressional elections.

Rule

3 U.S.C. § 1 and 2 U.S.C. § 7 establish uniform federal Election Day requirements for presidential and congressional elections respectively. The Elections Clause (Art. I, § 4) grants states authority to prescribe the time, place, and manner of federal elections, subject to congressional override. Foster v. Love, 522 U.S. 67 (1997), held that a state may not conduct federal elections before the federally designated Election Day.

Analysis

Watson, Mississippi's Secretary of State, defends the state's right to count mail-in ballots received within five days of Election Day if postmarked by Election Day. States have traditionally controlled election administration details, and federal statutes set the day for casting votes, not a rigid deadline for ballot receipt by election officials.

“Election” means choosing the a person to fill the office. The choice is made when the voting is complete. Not when the ballots are received.

The dissent relies on civil war precedent to suggest that the modern practice violates the original intent. During the civil war, military officers would gather soldiers on the battlefield and collect their ballots on Election Day. But it is unclear how these government officials collecting ballots and then slowly carrying them back to states for counting several days later is any different from handing a ballot to a postal worker, also a government officer. (Footnote 4)

Also key: the dissent relies on the RNC’s version of history of the success of this voting system. But President Lincoln, at the time, lamented that hundreds of thousands of soldiers could not vote because their home states did not allow any sort of remote voting. (Footnote 5)

Plaintiffs also used a Montana Supreme Court case to try to prove their point, but did the opposite. Maddox v Board of State Canvassers 116 Mont. 217 (1944) turned on state law, effectively proving the other side’s point here. States may set these rules however they wish.

Final point: the RNC throws in a last minute issue - that an elector could cancel the delivery of their ballot the day after the election but before its receipt, stop FedEx from completing the delivery (If fedex is allowed). Mississippi says that there really isn’t a way for this to happen and that recalling a ballot is not allowed. They also don’t argue that it would be allowed or that recalling ballots would not conflict with the law. So there’s just no argument here. The point is, the extended receipt date does not conflict, and the recall isssue, isn’t a real issue.

Federalist No. 59

Crafting election laws “Applicable to every probable change in the situation of the country” would be difficult. So instead of constitutionalizing it, they decided “discretionary power over elections” should be lodged somewhere instead.

Conclusion

The federal Election Day statutes do not preempt state laws on counting absentee ballots.

“By setting the day for the ‘election,’ these statutes set the day when the electorate must make its choice.”