Ben Ginsberg on the Supreme Court’s Mail Ballot Decision
The election lawyer and Declare contributor explains how Justice Barrett “said a lot without saying a lot” in her majority opinion in Watson v. Republican National Committee.
In one of the final decisions of the Supreme Court’s current term, a 5-4 majority ruled that federal election statutes determined only the day on which voters make their choices, not the day by which all ballots are due — preserving a law in Mississippi that permits mail-in ballots up to five days late to still count, as long as they’re postmarked by Election Day. Similar laws in 13 states were likely at stake, and laws in many additional states specifically for military and overseas voters could’ve been at risk, as well.
The decision landed as somewhat of a surprise to court-watchers, given the skepticism of the presumable swing votes during oral arguments. But Declare contributor Ben Ginsberg told us that Justice Amy Coney Barrett, who authored the majority’s opinion, ultimately “said a lot without saying a lot” about who gets to make election laws, in general.
“What the majority opinion basically says is that setting the time, place, and manner for elections clearly falls to the states. And the Constitution also gives Congress the authority to do nationwide laws. For example, we have an election date. It’s the first Tuesday after the first Monday in November. That was a statute passed by Congress. So Congress does have authority to do things like that. I think that probably Congress does have the authority to set a receipt date for all mail ballots nationwide. I think maybe some states for state races would be able to impose their policy,” Ginsberg said.
“What the opinion said without saying it is that the president has no role in setting policy for elections. In other words, I think that the opinion, reading through the lines, casts doubt on the authority of the president’s executive orders.”
Ginsberg elaborates in the video above for Declare.
Ben Ginsberg on the Supreme Court’s Mail Ballot Decision
In one of the final decisions of the Supreme Court’s current term, a 5-4 majority ruled that federal election statutes determined only the day on which voters make their choices, not the day by which all ballots are due — preserving a law in Mississippi that permits mail-in ballots up to five days late to still count, as long as they’re postmarked by Election Day. Similar laws in 13 states were likely at stake, and laws in many additional states specifically for military and overseas voters could’ve been at risk, as well.
The decision landed as somewhat of a surprise to court-watchers, given the skepticism of the presumable swing votes during oral arguments. But Declare contributor Ben Ginsberg told us that Justice Amy Coney Barrett, who authored the majority’s opinion, ultimately “said a lot without saying a lot” about who gets to make election laws, in general.
“What the majority opinion basically says is that setting the time, place, and manner for elections clearly falls to the states. And the Constitution also gives Congress the authority to do nationwide laws. For example, we have an election date. It’s the first Tuesday after the first Monday in November. That was a statute passed by Congress. So Congress does have authority to do things like that. I think that probably Congress does have the authority to set a receipt date for all mail ballots nationwide. I think maybe some states for state races would be able to impose their policy,” Ginsberg said.
“What the opinion said without saying it is that the president has no role in setting policy for elections. In other words, I think that the opinion, reading through the lines, casts doubt on the authority of the president’s executive orders.”
Ginsberg elaborates in the video above for Declare.
Read more on Declare: ‘A Narrow State Mail Ballot Policy Is Preserved by Supreme Court”