WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Watson v. Republican National Committee, a case in which the Court is considering whether Mississippi may count absentee ballots that are postmarked by Election Day but received up to 5 business days later, Constitutional Accountability Center Director of the Human Rights, Civil Rights, and Citizenship Program David Gans issued the following reaction:

During this morning’s argument, the Court’s conservative justices spent a lot of time attacking Mississippi’s law and other aspects of modern election law designed to afford voters a variety of ways to effectuate their fundamental right to vote, raising a host of policy concerns about voting by mail.

But as Justice Ketanji Brown Jackson suggested, the key question in this case is “who decides?” As Justice Jackson rightly observed, the critical question under “the Constitution’s allocation of responsibility” is whether “Congress has precluded states” from permitting acceptance of post-Election Day receipt of ballots. Under any fair reading of the text, Congress has not.

By establishing a day for Election Day—the day when voters cast their votes, whether at the polls or through the mail—Congress didn’t take away from the states their historic power to regulate the receipt and counting of ballots to ensure all votes are properly counted and the winner certified. The conservative attack on mail-in voting has no basis in federal law and does violence to principles of federalism.

Constitutional Accountability Center Legal Fellow Simon Chin added this reaction:

At today’s argument, Justice Sotomayor echoed the historical analysis at the heart of the amicus brief CAC filed. Justice Sotomayor recognized that state historical practice surrounding elections is informative of what Congress has permitted, and that the Court should look to history to see whether Congress has accepted a particular practice.

And Justice Sotomayor pointed to a powerful example: during the Civil War, states like Rhode Island and Nevada established absentee voting systems in which soldiers’ ballots did not have to be received by state election officials by Election Day. Instead, soldiers cast their ballots on Election Day by delivering them to commanding officers in the field, who were not sworn state election officials. These officers then transmitted them back to state authorities, with receipt necessarily occurring well after Election Day.

As we explained in our brief, this history is critical because Congress enacted the federal election-day statute in 1872, just seven years after the Civil War against the backdrop of these state practices, and chose not to require same-day receipt of ballots. Federal law sets the day by which votes must be cast, not the day by which they must be received. Mississippi’s common-sense law, which counts ballots postmarked by Election Day and received shortly thereafter, is fully consistent with this longstanding American tradition.