U.S. Supreme Court Oral Argument on Mail-In Ballots

[0:00] Over time, everyone voted in person. [0:02] There was no absentee voting. [0:03] There was no secret ballot. [0:05] Voters challenged each other's qualifications at the polls on Election Day. [0:10] And states received ballots on Election Day. [0:12] Over time, states changed all those practices. [0:16] They did so as Congress extended Election Day to all federal offices. [0:19] They've done so ever since. [0:21] No one claims that in setting the federal Election Day, Congress blocked most of those [0:25] changes. [0:26] The dispute is whether Congress blocked just one change, allowing ballots cast by Election [0:31] Day to be received after that day. [0:34] States have allowed that for over a century. [0:37] Congress has respected it. [0:38] No one challenged it until now. [0:40] The question is whether Congress in 1845 blocked that practice. [0:45] The answer is no. [0:47] The Election Day statutes adopt a simple rule. [0:50] States must make a final choice of officers by Election Day. [0:53] That is the plain meaning of an election. [0:55] As this Court said, it's not just a matter of time. [0:56] It's a matter of time. [0:57] In 1845, the state appointed a new person in the state of Wisconsin to elect an officer [0:58] in the state of Minnesota. [0:59] That's the nationality of the state. [1:00] That's the nationality of the state. [1:01] The state's opposition to the election, and the state's opposition to the election, [1:02] is the same as any other state in the state of Minnesota. [1:03] They've been elected in United States v. Classic. [1:04] From time immemorial, an election to public office has been a point of substance no more [1:05] and no less than the expression by qualified electors of their choice of candidates. [1:06] Mississippi satisfies that rule. [1:07] It makes a choice on Election Day. [1:08] And only that rule respects the last 180 years of state lawmaking. [1:09] If Election Day must be what it was in 1845, that takes out much more than the ballot [1:10] receipt laws of 30 states today. [1:11] And only that rule respects the last 180 years of state lawmaking. [1:16] If Election Day must be what it was in 1845, that takes out much more than the ballot receipt [1:20] laws of 30 states today. [1:22] It dooms absentee voting, modern methods of voting, the secret ballot, and more. [1:29] Congress did not adopt that destabilizing view when it simply set the Election Day. [1:34] The Fifth Circuit was wrong to rule otherwise. [1:36] This Court should reverse. [1:37] I welcome the Court's questions. [1:40] Just to be clear, you said in your opening statement, sometimes you said the choice has [1:47] to be made by Election Day, and at other points you say on Election Day, which is it? [1:53] I think the statewide choice needs to be made by or on Election Day itself when the entire [1:59] electorate has voted, Justice Thomas. [2:01] I think voters themselves need to make their individual selections by Election Day. [2:05] If I give my ballot... [2:10] May I? [2:10] If I give my mail-in ballot to my neighbor, is that a choice? [2:13] It's a choice. [2:14] It's not a final choice that can be recognized in the context of an election. [2:17] So when do I know whether or not a choice is final? [2:21] When you've submitted to the state, to the appropriate state election official through [2:25] the designated state process. [2:27] So why isn't it the rule then that the final, the formalized decision, electoral decision, [2:35] isn't made until that's done? [2:40] Until it's submitted to the official, Your Honor. [2:42] I think the choice is made once the voter has made, the voters as a whole have made [2:46] an irrevocable decision by casting their ballots. [2:48] What does that mean? [2:49] A final choice. [2:50] They've cast their ballots. [2:51] Well, if I made a final choice when I handed it to my neighbor. [2:56] But it's a final choice within an official state process, Justice Thomas, which... [3:00] Well, I think the ballot is an official state process. [3:03] Is that enough? [3:04] Not enough to be known in a public way to the state. [3:07] That happens when it is parted with and voted. [3:09] Okay. [3:10] And submitted through mail to the appropriate election official. [3:14] Then it's final. [3:17] If day means, includes a period after a particular day of the election, does it include a particular [3:25] day before the day of the election? [3:29] Or does your logic require a different consideration? [3:37] Forgive me if I may not be understanding the question correctly, Your Honor. [3:39] I think the key is that the election day is the day by which a final choice electorate-wide [3:46] must be made. [3:47] It can't be made after that day by voters or the electorate as a whole. [3:50] But individual selections can surely be made before that day because there's still no final [3:54] choice until you have an electorate-wide deadline. [3:56] Is there any limit to that? [3:59] As to how early people could vote? [4:00] Sure. [4:01] They fill out a ballot if you're giving them a ballot and drop it off two weeks before. [4:07] Okay. [4:08] And as far as the federal election day statutes are concerned, Your Honor, I don't think there [4:13] is a limit to how early that could occur. [4:15] I think you just need the day when the electorate as a whole needs to have chosen. [4:19] There might be other practical or other barriers in that. [4:23] Of course, elections are a very long process to begin with, the entire electoral process. [4:27] So surely things are happening weeks and months before. [4:30] But I think even a couple weeks before, even earlier than that in some cases, people are [4:34] making individual selections. [4:36] It's just election day itself is the day for the final collection. [4:37] It's not the day for the final collective choice. [4:40] Counsel, I want to go back to your answers to Justice Thomas. [4:44] So I understand that Mississippi's particular rule says that it has to be deposited in USPS [4:50] or with the common carrier. [4:52] But I don't understand why Mississippi's definition in the next case would preclude a state from [4:57] adopting a law along the lines of the one that Justice Thomas is proposing. [5:01] For example, if I have someone in my neighborhood, in my HOA, who says, listen, I'm going to vote [5:06] on the day of the election. [5:07] I'm going to take everybody's votes in. [5:09] What if the state said, that's fine if you've cast your final vote and you've designated [5:15] someone to carry your vote to, as long as it gets to the ballot box, five days after [5:22] election day, it's fine. [5:24] Why does your definition preclude what Justice Thomas hypothesized? [5:27] Right. [5:28] And I think, Justice Barrett, the answer is that submission to mail or common carrier [5:33] is different in kind than, say, submitting it to a relative or sort of a neighbor. [5:37] Right. [5:37] What's the difference? [5:38] They're not government officials. [5:40] They are impartial third parties that have a duty to deliver what they're owed without [5:47] altering it. [5:48] But what about the definition that you're proposing precludes that? [5:52] Your definition didn't say, final as submitted to an impartial third party or final as submitted [5:58] to a common carrier. [6:00] You said, the final choice has been made. [6:02] And there are lots of different ways, it seems to me, that you can make a final choice. [6:06] And you also have the problem of... [6:07] I think, to start with the first part, Your Honor, I think we're going at a historically [6:18] recognized form of finality. [6:19] I think history is helpful in a number of ways. [6:22] And one way is that as long as we've had mail-in voting, for almost as long as that time, we've [6:30] had post-election day ballot receipt. [6:32] Mail-in voting, I think, in general, has been understood as a permissible, unchallenged [6:35] method of... [6:36] I wouldn't rely on the history of voting. [6:37] I would rely on the history of federal youth, since you're telling us not to rely on the [6:40] other side's history. [6:41] Just because it's always been done that way doesn't mean it has to be done that way, which [6:45] I actually find is a good point in your favor. [6:48] But then it seems to me that you're flipping back around and saying, well, absentee voting [6:52] has always been done that way by common carrier, and so that's how we would expect it to be [6:56] done. [6:57] Well, I think it says something that for a hundred years, we've had people voting by [7:01] mail and that's been an understood means of submitting a ballot to the state. [7:05] I think what it embodies, Justice Barrett, is there's a certain level of... [7:06] I think it's a good point. [7:07] There's an intuition that when you put something through the postal service, it's final, it's [7:13] trusted, it's not like giving it to a non-official third party. [7:19] What if a state came up with a law that said so long as a notary, that's official, that's [7:25] recognized, certified that you cast your ballot on election day and it was delivered later [7:30] by whatever means, common carrier or not, what in your theory of the preemptive effect [7:37] of this is? [7:37] Well, I think it's a good point. [7:38] The fact that it's a law that's not in the statute would preclude that law. [7:39] I think two points on that, Justice Gorsuch. [7:40] One I think is that... [7:41] Pick your best. [7:42] Well, I think one's kind of a point in our favor and one's kind of a point against our [7:49] friends, which is that there's a finality of submitting it to an official and... [7:56] Yeah, it's been notarized by, well, how about a justice of the United States Supreme Court? [8:03] Is that official enough for you? [8:04] I mean, it's pretty official. [8:06] I don't think it's been submitted to an official. [8:07] It's pretty official. [8:08] It's pretty good, Your Honor, but I don't think it kind of hits submission to the state. [8:11] Ah, okay. [8:12] Well, that's... [8:13] I wanted to explore... [8:14] So that's not submitted to the state, even if it's notarized, an affidavit, it was final [8:20] on the day of, and somebody brings it into the state offices a week or three months later, [8:26] that doesn't count, but if it goes into the mail, it does. [8:30] What in the statute, what words in the statute would you have us read that into, that rule [8:34] into? [8:35] Well, I mean, I think... [8:36] I mean, just to make sure I understand, I think that's fine under my friend's view, [8:40] too, Your Honor. [8:41] I mean, a notary could be... [8:42] I'm asking about your view, counsel. [8:43] Sure. [8:44] So I think... [8:45] You're saying that's not fine, and I want to understand what in the federal law preempts [8:50] that? [8:51] Well, I think, number one, I just am not... [8:53] At least as I understand the hypothetical, it doesn't appear to be submission to the [8:57] state, Your Honor. [8:58] Oh, it gets submitted to the state three weeks later, just not by common carrier. [9:02] Well, I mean, if what you're saying, Your Honor, is that a notary has been... [9:06] Deemed a sufficient ballot receiver under state law, then I think... [9:10] Yes. [9:11] Then that's okay, too. [9:12] Okay, what if state law... [9:13] So now you're saying that is okay. [9:15] I think it may depend on how... [9:18] What the level of officiality... [9:19] Well, the state says it's official, by God, when a Supreme Court justice or perhaps just [9:25] a notary says it's official. [9:28] That's good enough under your... [9:29] It has to be, I think. [9:30] And if that's okay, why can't a state say, how about a timestamp video showing that I've [9:36] voted on election day? [9:38] Here I am filling out my ballot, and then my brother, or maybe some aggregator of ballots, [9:45] brings it in a week or three later. [9:47] That's gotta be okay, too, doesn't it? [9:49] I think it's still just... [9:50] I keep coming back, Justice Gorsuch, to this pedigree of submitting it to a state. [9:54] I mean, I think as a good example... [9:55] Well, the state says that's official. [9:57] State says that's fine. [9:58] Ballot aggregators are great, and so long as it's a timestamp video or a notary or maybe [10:03] a Supreme Court... [10:04] Or who knows what. [10:05] The library... [10:06] Yeah. [10:06] The librarian says you cast it on the day of the election, and we're good to go, right? [10:13] I do still have some concern that it has not been submitted... [10:16] Counsel, why are you fighting the premise? [10:19] In the Civil War, at least two states permitted military officers who weren't sworn state [10:26] officials, they were federal officials but not sworn state officials, to accept the ballots [10:34] and transmitted the ballot. [10:36] And they were not permitted by mail to the state, okay? [10:40] And that was in the Civil War, all right? [10:45] Since 1918, we've had laws like Mississippi. [10:51] By 1944, eight of them. [10:55] Since then, 12 more by 1886. [10:59] And now half the states permit absentee ballots that are dropped in the mail, correct? [11:04] No different than in the Civil War. [11:06] We have no federal law that says that's not okay, for the state to designate someone by [11:13] whom an official ballot has to be given by election day, correct? [11:18] And if the state wants to make it a notary republic, if it wants to make it a military [11:24] officer, if it wants to make it a Supreme Court justice, if it wants to make it anyone, [11:30] as long as it's done by election day, that's what counts, correct? [11:34] I mean, I think that's possible. [11:35] We're not quite asking for that, Your Honor. [11:37] I really don't mean to fight the premise. [11:38] No, you don't, because you're only defending this law. [11:40] And this law is very consistent with what happened in the Civil War. [11:43] It's very consistent with what has happened for over 100 years. [11:48] There's nothing in federal law that has prohibited it explicitly, correct? [11:52] That's right, Your Honor. [11:53] Well, Justice Sotomayor is asking you what I think she intends to be a friendly question, [12:00] but maybe you want to think about whether you want to go that far. [12:05] What if the state designates an official of the Republican Party or the Democratic Party [12:13] who receives these ballots, collects ballots, and fills out an affidavit saying, I received [12:22] all these and I will faithfully deliver them? [12:27] Would that be okay? [12:28] Well, I think it's actually okay under my friend's view, Your Honor. [12:33] We're not making that ask. [12:34] I mean, as far as my friend's view are concerned, I don't think that's a good question. [12:35] So long as somebody's designated a ballot receiver, they can be fine. [12:39] Party boss, party bag man, relative, any of those, so long as the state says you are a [12:43] ballot receiver, that's fine. [12:45] The only thing that apparently is not fine is U.S. Postal Service common carrier. [12:49] And I think that is, I think, a very odd way to read those statutes. [12:52] Well, the Postal Service is not part of the state, and a common carrier isn't part of [12:56] any government. [12:57] That's right, Your Honor. [12:58] But I mean, certainly we all know the status of the U.S. Postal Service as a highly regulated [13:04] government entity with certain obligations. [13:05] Common carriers, in a very similar way, highly regulated with similar obligations. [13:11] And they give, in both cases, they're imbued with a duty to deliver what they receive. [13:17] And in fact, a duty that's, I think, a good, maybe a good example is the fact that the [13:21] IRS accepts tax returns, which are obviously highly consequential documents with key timeliness [13:27] requirements. [13:28] The IRS accepts tax returns both through the mail and through common carriers. [13:32] Well, you will, you will accept ballots that are received. [13:35] I think we don't have a tax accounting department at Fresno. [13:36] We're going to have an office. [13:37] And it's in the case of the U.S. Postal Service that he's anачoing that they can fulfill [13:42] tax transactions. [13:43] We all know how political sacrifices are made, politically. [13:45] So it's very common. [13:46] It's a當s process. [13:47] All theßerdem we've covered up the question, but this is a theming thing. [13:48] So this is just a, this is thelessness related to the kauppresレhre issue. [13:50] That's right. [13:51] You have a variety of line-drawing problems, so we've been exploring one. [13:52] To whom, and by what means, is this thing is the ballot to be delivered to the state? [13:55] But how, what about the length of time that a state could choose? [14:00] Is it the case, isn't it the case that some state allows—will count ballots for 30 months? [14:05] that are received 21 days after election day? [14:08] There are a couple that at the outlier, [14:10] it's kind of canvassing and it can go that far. [14:11] I think more comments about the 2010. [14:12] Is that okay? Is that all right? [14:14] As far as the federal election day statutes are concerned, [14:17] yes, Your Honor, and I think this actually gets to a good point [14:19] that loops back to something Justice Gorsuch was mentioned, [14:22] was getting at in a certain way, [14:24] which I think he was saying, you know, [14:25] what in the federal election day statutes decides that? [14:27] I think that's the key point in our favor, [14:30] is this is an area where states get to go first, [14:32] make these decisions, Congress can step in, but the idea is... [14:35] So there's no limit, except, I suppose, [14:38] the day when the presidential electors have to be appointed [14:41] or the day when the next Congress begins, [14:45] starts its session, that's the only limit [14:47] on counting mail-in ballots? [14:50] Those are some of the limits, Your Honor, [14:52] but I'd also say the federal election day statutes [14:54] don't require states to count ballots at all. [14:56] It doesn't speak to counting, period. [14:58] So, I mean, if a state really didn't want to... [15:00] Not counting, but being delivered. [15:03] So I do think it is a consequence, [15:04] and you know, I think it's a consequence, [15:05] and you know, I think it's a consequence, [15:05] and you know, I think it's a consequence, you can tell me if I'm wrong, [15:06] but just so we can wrap this up, [15:08] that by any means and by any date, [15:12] up until the next Congress meets, [15:16] a state can receive ballots. [15:19] I think for congressional races, [15:21] potentially, yes, Your Honor. [15:22] I think there are other Title III kind of things [15:25] that push action earlier in the presidential context, [15:28] but again, I mean, there's nothing... [15:30] The key question is, these are three one-sentence provisions, [15:32] and we want to be, I think, very careful [15:33] not to read them for more than they're worth. [15:35] not to read them for more than they're worth. [15:35] not to read them for more than they're worth. And, Counsel, isn't... [15:36] And, Counsel, isn't... [15:36] And, Counsel, isn't... I was just gonna say, [15:37] I was just gonna say, [15:37] I was just gonna say, isn't your point that [15:40] the line-drawing issues that have been raised [15:42] are only problems to the extent [15:44] that Congress thought they were problems? [15:46] We're in a preemption dynamic, [15:49] and so the question, I think, really, [15:52] is what did Congress intend [15:54] with its statement about Election Day? [15:57] Did it mean to cabin the states [16:00] so that they did not have the discretion [16:01] to make these kinds of decisions? [16:04] And... [16:04] And in addition to what Justice Sotomayor has said, [16:07] which is, we have no federal statute that precludes this, [16:11] I think we have several federal statutes [16:13] that suggest that Congress was aware [16:16] of post-Election Day ballot deadlines [16:20] that the states had enacted, [16:21] and in fact, incorporated those in several circumstances. [16:25] So can you speak to that? [16:26] I'm talking about UOCAVA, for example, [16:28] and some other federal statutes that indicate [16:32] that Congress not only knew this was going on, [16:34] but then it interpreted and incorporated [16:37] the states' own post-election-day ballot deadlines [16:41] into federal law. [16:43] Sure, Your Honor. [16:44] So I think that's exactly right. [16:45] So UOCAVA is maybe the best example [16:48] where Congress was told that about a dozen or so states [16:50] have post-election day ballot receipt laws. [16:52] It respected those explicitly [16:55] as to a deadline for ballots in that law. [16:59] I think the United States has agreed with us on that. [17:02] And Congress wasn't worried, I think, about... [17:02] They didn't know. [17:03] They hadn't heard us tell them that. [17:04] They just didn't hold them in. [17:04] So all I would say is, you, Your Honor, [17:04] I think, through the legislation, this and that very early, [17:04] the states picking dates that were, you know, [17:07] we might think are too long or whatnot. [17:10] That was not in the statute. [17:11] Congress just said whatever the state has decided [17:14] with regard to ballot receipt deadlines [17:17] is going to apply here, correct? [17:19] And that's been the case for 180 years, Your Honor. [17:21] And I think one feature that I, you know, [17:24] obviously we're searching for what did the statutes mean [17:26] at the time, but I think it's very hard for my friends [17:29] to explain the past 100 years of history [17:31] and this lawmaking, the Soldier Voting Act in the 1940s [17:34] was another example where Congress recognized [17:36] and respected state deadlines. [17:39] And it just, it gets very hard to explain those things [17:41] if you don't adopt the view [17:43] that the federal election day statutes just do not set a [17:45] ballot receipt deadline. [17:47] I want to ask you about the recall problem. [17:49] And before I get to that, throughout your brief you say [17:53] that the federal statute does require voters [17:57] to submit their ballots to election officials [17:59] on election day, must be cast by election day, [18:03] and that the date of election day is not set [18:04] and that the election day is the day to conclude [18:06] and consummate the election through a final selection. [18:10] You agree with all those statements in your brief? [18:12] Yes. [18:12] Okay. But at the same time you say actually it doesn't have [18:15] to be submitted to an election official, it just has [18:18] to be submitted to a common carrier. [18:20] And there's a contradiction there that I just want you [18:24] to first address and then I'll give you my hypothetical. [18:27] Very good, Your Honor. [18:28] I think when you put something in the mail you're not, [18:32] I think. [18:33] That's not an election official. [18:34] FedEx isn't an election official. [18:36] Right. But the recipient certainly is the person [18:38] who you're submitting it in the mail to. [18:40] I mean that is the recipient. [18:42] Sure, of course. [18:42] And, right, Your Honor. [18:44] And I think. [18:45] You submit it to FedEx and they deliver it [18:47] to the election official. [18:49] But you say it has to be submitted [18:51] to an election official throughout your brief, [18:53] but then you say a common carrier is okay. [18:56] And those two things don't add up. [18:59] Well, I think the difference is say, you know, [19:01] sending it to your brother versus sending it [19:03] to the registrar. [19:04] Well, we already dealt with that. [19:05] The brother turns out to be okay so long as the state says so. [19:08] I think that's okay on their view, Your Honor. [19:10] I'm a little more guarded on that. [19:12] I think you already answered that one. [19:14] So here's the hypo. [19:15] Let's say you have a state where a large portion [19:18] of the electorate mails in their ballots on or close [19:20] to election day. [19:22] Not far fetched. [19:23] Many states are like that. [19:25] Then the day after the election a story breaks that one [19:28] of the lead candidates engaged in an inappropriate sexual escapade [19:34] and the vote perhaps is concluding with a foreign power. [19:36] Again, not far fetched, I think. [19:39] And the competing candidate immediately goes on the airwaves [19:42] and urges voters to recall their ballots [19:46] and to tell the common carriers not to deliver them. [19:49] And many common carriers will do that with anything [19:52] that you send through them. [19:54] FedEx, you just call them up and say I want it back. [19:58] In that hypothetical, did the election happen [20:00] on election day? [20:01] Oh, by the way, it swings the election. [20:03] It swings the election. [20:04] So the election did happen on election day, Justice Gorsuch. [20:07] As we've explained, our ballot does not [20:09] allow using mail recall, anything like that. [20:12] When somebody submits their ballot by mail, it's fine. [20:14] First deal with my hypothetical, and then I'll [20:15] deal with your statute. [20:17] OK. [20:18] The election happened on election day. [20:19] Even though it changes the outcome? [20:22] I mean, I think. [20:25] Yes, it has to be your answer, doesn't it? [20:28] I mean, yes, Your Honor. [20:29] I want to be clear about that. [20:31] All right. [20:31] We are not agreeing that the outcome can be properly [20:34] changed in that circumstance. [20:35] Well, hold on. [20:35] It did in my hypothetical. [20:38] You can't change my hypothetical, counsel. [20:40] And I'm just saying it's unlawful, Your Honor. [20:42] It's unlawful? [20:42] What's unlawful? [20:43] I don't mean to disparage your hypothetical. [20:43] I'm just saying that it's an unlawful circumstance [20:46] because we don't allow ballot recall. [20:47] Oh, in Mississippi. [20:48] OK. [20:49] But that hypothetical could happen in another state, right? [20:53] I think if the state is not providing that on mailing [20:56] there's a final choice made, I think [20:57] that would be a problem with that law under the federal statute. [20:59] OK. [21:00] Now, you say your statute, you're different. [21:02] You could admit my hypothetical. [21:04] It could happen. [21:04] But you say it can't happen in Mississippi [21:06] because recall is not allowed. [21:08] I couldn't find that anywhere in Mississippi law. [21:11] In fact, what I did see was a statute [21:14] that says that the Secretary of State can promulgate rules [21:19] and regulations. [21:21] That's 23-15-637-3. [21:24] And then I went and looked at the regulations. [21:27] And rule 2.1 says that an absentee ballot [21:30] is the final vote of a voter when the ballot is [21:34] marked accepted. [21:36] That doesn't preclude recall. [21:39] In fact, that allows recall. [21:42] I respectfully don't agree with that, Your Honor. [21:43] I mean, what's the [21:44] Where does it say recall is not permitted? [21:46] I couldn't find that anywhere in your statutes or the rule. [21:49] And I think by providing that ballots are final when [21:51] cast under our statute. [21:52] No, it doesn't. [21:52] It says they're final when marked accepted. [21:55] That's the regulation, Your Honor. [21:56] Yeah. [21:57] Yeah. [21:57] And it's your regulation. [22:00] And it allows recall. [22:01] It does. [22:02] Respectfully, it does not allow recall, Your Honor. [22:03] The ballot is final when cast. [22:05] Would you read to me the provision that precludes it? [22:07] It's subsection 3 of the statute that my friends have challenged. [22:10] I read you subsection 3 that says that Secretary of State [22:13] can make rules. [22:14] And then I read you the rule. [22:15] To ensure that the ballots are final when cast. [22:17] The key thing is the ballots are final when cast. [22:20] It says, no, votes promulgated by an absentee ballot [22:24] that the absentee ballot, person's absentee vote is final. [22:27] You can make rules about when they're final. [22:29] And what the rule says is it is final when marked accepted. [22:33] And that's, I mean, it's speaking to a processing rule [22:37] about what to do when somebody's ballot potentially [22:40] doesn't arrive on time. [22:41] They submit an affidavit ballot. [22:43] But I would come back to the text of the statute, Your Honor. [22:45] I mean, final when cast is what our law is. [22:47] Mr. Stewart, I just want to ask a clarifying point to this. [22:51] Is it possible for a portion of Mississippi's statute [22:54] to be unlawful, not just go with me here, [22:57] a portion of Mississippi's statute [22:59] to be unlawful insofar as it potentially permits recall, [23:03] but still that would not address whether Mississippi's [23:06] statute was unlawful insofar as it allowed ballot [23:09] receipt after election day? [23:12] MR. Yes, Your Honor. [23:13] I mean, I think one possibility would be like, hey, look, [23:15] you need more unambiguous finality here, [23:18] and you need to foreclose recall period full stop. [23:21] MS. OK. [23:22] And on this question, I just want [23:24] to make sure I understand what you're saying. [23:25] When you said, yes, my friends on the other side [23:27] say it's OK for private parties to deliver just like you do, [23:32] are you saying that that's just a [23:33] manner of receipt and whether the ballot is received [23:37] before or after the election on all sides, [23:40] everybody agrees that absentee ballots can be turned in [23:42] by having the neighbor, the party operative, or whatever, [23:47] scoop them up and bring them to the ballot box? [23:51] MR. Your Honor, I mean, maybe I'm [23:53] not sure if I answered the earlier thing as crisply [23:57] as I could. [23:57] I'm not comfortable with the neighbor piece. [23:59] I do have serious concerns about that. [24:01] MS. But is that tied to the ballot receipt problem, [24:03] or is that just tied to, hey, maybe this [24:04] is an unlawful way of executing absentee [24:08] balloting regardless of when the ballots make it [24:11] to the official? [24:12] MR. I think it's the finality of the choice that [24:14] has to be done by Election Day. [24:15] And my concern is that if you're not sending it [24:18] by mail or common carry. [24:19] MS. You're getting caught up, counsel, again. [24:21] Could you go back to the question? [24:22] Justice Barrett is not arguing with you. [24:25] MR. Fair enough. [24:26] MS. What she's saying and what you said earlier is, [24:30] and you believe that under your adversary [24:33] is the opposing counsel's theory, [24:36] you can give it to the RNC operative. [24:39] You can give it to anybody. [24:41] And so long as it's received on Election Day by the state, [24:44] that's OK. [24:46] That's what you're saying your opposing counsel is saying. [24:48] And you're saying the only question before us [24:51] is if they can designate an appropriate vehicle [24:55] to transmit the votes, then that's OK. [25:01] MR. I think I was saying the latter [25:03] part, yes, Your Honor. [25:04] But I actually think under my friend's view, [25:06] it's OK for, like, a state can deem the ballot received [25:11] when the party operative himself or herself receives it. [25:14] Because all that person has to do [25:16] is be a ballot receiver designated by the state. [25:18] And we're trying to hew more closely not just to the text, [25:21] but also the historical 100 year long. [25:23] You can submit it by mail. [25:25] MS. OK. [25:26] So but the bottom line is that states [25:28] can choose when the final vote has to be counted. [25:32] MR. Yes. [25:33] The states have discretion over counting. [25:35] MS. Exactly. [25:36] Thank you, Counsel. [25:37] Justice Thomas, anything further? [25:39] JUSTICE THOMAS. [25:40] JUSTICE THOMAS. [25:41] Just as a point of clarification, [25:43] without looking at the subsequent history, [25:46] what do you think the federal law required [25:49] as far as the Election Day? [25:52] MR. That the voters make a final choice by that day. [25:55] The way I'd boil it down, Justice Thomas, [25:57] is choice is critical and unchanging. [25:59] Method of making that choice is malleable. [26:01] And that does also explain why. [26:02] And that's why we have to explain all the subsequent history. [26:05] JUSTICE THOMAS. [26:05] And you don't have to formalize that choice? [26:07] MR. You do by submitting, by parting with your ballot [26:10] and submitting it to the state. [26:13] MS. Have we had any examples? [26:14] JUSTICE THOMAS. [26:14] Justice Alito. [26:17] Your position does require some difficult line drawing problems. [26:21] And maybe that's inevitable. [26:23] But one is the degree of confidence [26:26] that one must have in the entity or person who transmits the ballot [26:32] to the state. [26:33] We've talked about that. [26:34] One is how long after the Election Day votes can be received. [26:46] A third is whether it has to be postmarked. [26:51] Aren't there eight states that do not require a postmark for late ballots? [26:55] MR. There are a number of states that don't require that, Your Honor. [26:57] I think postmarking is good evidence that something has been timely submitted. [27:01] That's kind of borne out in the tax context. [27:04] I think if somebody were challenging a law like that, [27:08] it would potentially be a very different kind of a challenge. [27:10] They'd have to make sort of factual showings [27:12] to challenge that ballots were not cast by Election Day, [27:14] but surely not this case. [27:16] JUSTICE ALITO. [27:17] Maybe it's inevitable that some sort of line drawing decisions [27:22] like these have to be made unless the rule is anything goes, [27:26] states can do anything they want in this area. [27:31] We don't have a whole lot. [27:31] We have a lot to go on here. [27:34] We have the phrase Election Day, and we have history. [27:40] If we looked just at the phrase Election Day, what would we take from that? [27:46] I think you've been saying, and we're moving in this direction, [27:50] we don't have Election Day anymore. [27:52] We have Election Month, or we have Election Months. [27:55] I mean, the early voting can start a month before the election. [27:59] The ballots can be received. [28:01] MR. Yeah. [28:01] Just to add to that, I think that's a good point. [28:01] The ballots can be received a month after the election. [28:06] MR. Well, I think the best way to read it, Your Honor, [28:08] is that by setting Election Day, the Congress set the final choice day. [28:12] And that's the key thing, final choice day. [28:14] What Congress was concerned about at the time was some states making final choices, [28:18] say, a month before other states were making final choices, [28:20] and the distortions, the fraud, the risks that that had. [28:23] And when everybody's making a final choice on the same day, [28:26] even if some individual choices are made before then, [28:29] you're honoring the statutes, and I think [28:31] just so literally you made this observation, [28:33] not a lot to go on because the statutes are just not very, [28:38] there's not a lot of prolixity there. [28:40] I think that's a point in favor of deference to the states. [28:43] You know, if Congress has not spoken to something, [28:45] especially in this context where states are expressly empowered [28:47] to regulate these things, that's a big point in favor [28:50] of letting states continue to do so as they have for a century. [28:53] MR. Do you think it's legitimate for us to take into account Congress's, [29:01] desire Congress's passage of the Election Day statutes for the purpose of [29:08] combating fraud or the appearance of fraud and will and some of the briefs [29:17] have argued that confidence in election outcomes can be seriously undermined if [29:23] the apparent outcome of the election on the day after the polls close is [29:30] radically flipped by the acceptance later of a big stash of ballots that [29:38] flip the election or yeah I think you've got ballots that are delivered by [29:46] somebody by you know by a neighbor and they received a month after the election [29:51] and they don't have postmarks I think the best way to do it is to honor the [29:57] statutes purpose by but doing so by respecting the statutes [30:00] technically and then by the way I think it's a good idea to do it in a way that [30:00] is in context and animating context and what these statutes were getting at was [30:03] not just any kind of fraud writ large in all elections which you know no statute [30:07] could do but a situation where okay you know state one votes you know has their [30:12] election on one day ends it and state two neighboring has its election three [30:15] weeks later because the concern would be let's say state one goes for one party [30:19] and then state three goes for the other party with a huge turnout for that other [30:22] party you could have potential fraud people went across state lines and voted [30:26] or you could have the appearance of that sort of fraud even if it didn't actually [30:29] happen like people just said oh my god [30:30] they voted for that person I'm you know big turnout so I think that's the kind of [30:34] thing that animated those statutes whereas fraud writ large was not was not [30:39] a good example I do think it's it's notable that my friends with the United [30:43] States you know you know obviously they they've sounded the anti-fraud theme [30:47] they haven't cited a single example of fraud from post election a ballot [30:51] receipt okay sure thank you I'll let my colleagues have justice or mayor has [30:55] there been any history of voter recall in the mails [31:00] in Mississippi you say the law doesn't permit it but has there been any history [31:05] of it none that I've ever heard of your I mean this isn't something that was [31:09] raised until the appellate reply briefs and nobody cited a single example in [31:11] history of it all right and I understand justice Alito's questions about the [31:19] policy questions of what will create discomfort or not but the Constitution [31:25] thus the issue of elections in the states [31:30] unless superseded by Congress correct that's right your honor so if there is a [31:35] policy question to be had the entities to decide that are the states in [31:40] Congress not the courts correct that's right your honor and absent a law in [31:45] federal law that suggests that absentee ballots must be received by a certain [31:52] time there's no explicit requirement of that correct right runner or even [31:58] implicit and and the implicit [32:00] we have the military acts that since World War two at least and the Civil War [32:06] I should go back that far have permitted absentee ballots to be received long [32:12] past Election Day correct we have a very long history of that your honor exactly [32:18] so the people who should decide this issue are not the courts but Congress [32:23] correct right your honor I think the states and Congress that's right your [32:28] hand and as I was [32:30] mentioning my colloquy with I believe Justice Alito earlier and that's kind of [32:33] the structure of our system states go first if Congress doesn't like it it [32:36] overrides and as I think Justice Scalia said for the court in Arizona [32:40] intertribal we respect what Congress said as far as it went but no farther [32:43] and that's kind of the history of voting and election law in the country one last [32:47] question with respect to history history is informative of what's been permitted [32:53] by Congress because what we're looking for is what understanding Congress had [32:58] with respect to elections correct [33:00] that's right your honor all right and it doesn't talk about the receipt of [33:06] absentee ballots after elections at all so we look to the history of whether [33:11] Congress has accepted it correct I think that does help here all right but the [33:17] attempt by some of the Amici here to Brunel eyes this inquiry and say that [33:24] history tells us how elections must be held and on what date and when receipt [33:28] can happen or not happen and that's what we're looking for is what we're looking for is that we're looking for a [33:30] history that's not acceptable and that's not acceptable and that's not acceptable [33:32] why is that not an acceptable way to look at this well I think the difference [33:35] between Bruin and here your honor is that Bruin in Bruin the court the the [33:39] question at issue you know whether a restriction on firearms is consistent [33:43] with our historical tradition of firearm regulation there's a rich history [33:46] addressing precisely that issue sometimes through analogy but very much [33:50] I mean Bruin itself I believe I want to say 40 pages of history just analyzing [33:55] those things we don't have anything like that a rich history suggesting that [33:58] Congress was even thinking about [34:00] locking in election day ballot receipt or anything like it it was addressing [34:03] different things Thank You counsel Thank You your honor [34:06] Mrs. Kagan I guess Mr. Stewart your answers to Justice Sotomayor's questions [34:11] leave me unsure about what you think about these appeals to history I mean [34:17] you've said that there's not a lot of text here I agree with that I think that [34:21] the way this case has been argued all around suggests that that's so so so [34:27] then we're left with history or are we left with [34:30] history you seem to appeal to history sometimes Justice Barrett said this but [34:35] then repudiate the appeals to history at other times and I guess I want to know [34:40] what we're supposed to be doing when we're looking at this statute and [34:44] deciding this question with respect to all this historical evidence scant or [34:49] not scant as it may be sure your honor so I I think the best way I can break it [34:54] down is this is that history's informative here uh and the way it's most informative is that since [35:00] Congress said I mean throughout our history and certainly since Congress set the federal election [35:03] day election administration our country has been very very dynamic as I tried to highlight my [35:08] opener it was one thing in person on the spot qualification checks by fellow voters ballots [35:13] were naturally received on election day all those features as soon as Congress had a reason to alter [35:19] the methods by which a choice was made it did so but the one constant is that the voters in a [35:24] popular government it's most critically the voters the constant is that the voters make a final [35:27] choice of officers by election day so I think history [35:30] shows that election administration is dynamic uh states have wide leeway they just have to make [35:35] sure that the voters make a choice by election day thank you thank you your honor Mrs Gorsuch [35:41] almost done Mr Stewart um you you emphasize to Justice Kagan and many others that the the final [35:49] choice at least has to be done on election day and so recall would be a problem for you if if [35:56] it could happen um but you say that that that doesn't happen in Mississippi [36:00] that that's that's your position right right it's not permitted if recall could happen that would be a [36:05] problem for your position I think there potentially I think that it wouldn't be a final decision on [36:11] election day right that's right I think there'll be a factual question that whether I I still have [36:16] not been cited anything to say that recall is actually a thing that can happen in the world [36:19] I understand but if it could happen that would be a problem for your theory because the final choice [36:23] wouldn't have happened on election day right fair yeah okay so you you say Mississippi prohibits it [36:30] we've been through whether that's the case or not very good um but let's say it did let's say there [36:36] was a law prohibiting recall how would it ever be enforced because how is a state to know and [36:43] how is even a common carrier carrying an envelope to know whether that is a ballot that needs to be [36:50] recalled and who are you going to prosecute well I think I think it could be enforced similar to other [36:55] voter things I mean in our state there are notarization and affidavit requirements signing [37:00] things I think one of the if if if it were critical for the voter to say that there will be no recall [37:05] the voter could say I hereby commit that I will not attempt to or recall this package in any way [37:10] shape or form they could just add that sign it uh I take the point about proof problems but I mean [37:16] gosh Justice gorgeous I mean violating state election laws in a state that really is anti-fraud [37:21] and really takes wide measures to enforce its laws that would be quite a thing for a voter to do well [37:27] in my hypothetical which you know you say is unlikely [37:30] to swing an election and all of that on recall but as soon you know if history teaches anything [37:36] scant or not scant it's that as soon as something's allowed it will happen eventually right and um you [37:45] know so so somebody uh that my hypothetical happens and everybody recalls it I their ballots [37:52] I'm just not sure what recourse the state would have against people who violated its anti-recall [37:58] law I mean if if people are [38:00] say recalling things through a common carrier there's going to be some record that they [38:03] recalled those things a state how's the state ever going to find out about it I mean I think the same [38:08] the same way it's gonna go you're gonna go prosecute individuals I mean your honor I'd say [38:13] like if somebody is lying in an affidavit that they're not going to recall something I mean [38:17] if if people are doing that with impunity we have quite a problem but it is a problem that the state [38:22] can address and enforce uh I just don't know how they'd ever find out about it I I mean I think [38:29] you you obviously [38:30] know some crimes are harder to find out and prosecute than others your honor but I think [38:33] it's still I mean people can do things try to like tamper with ballots all that sort of thing I think [38:38] it's just still a matter of respecting the state thank you thank you just this is Cavanaugh when [38:43] did Mississippi uh switch to this method 2020. uh in 2024 added common carriers and why uh it was [38:50] first because of the pandemic um I I have uh I don't know that there's necessarily an answerable [39:00] um and the other side makes a point when we're looking at history to the extent historical [39:05] practice is relevant that it only became widespread to allow it to be mailed by election day in more [39:13] recent years and that the predominant approach was to require receipt by election day throughout the [39:21] historical practice you cite until very recently how are we supposed to think about that I mean I [39:28] think it's the same way to think about [39:30] um I I think the broader history of election law is when when states have kind of seen a problem [39:35] they've adapted and uh adjusted and often in the in the direction of allow making sure that more [39:41] votes can be counted I mean that was obviously a big thing when absentee voting started to become [39:46] a prominent thing you know certainly we cared for much about our history of people showing up in [39:50] person but we realized that was very difficult from people away from home and that we wanted to [39:54] uh you know kind of widen the tent and make it make it so that people could vote and I think [39:59] perhaps [40:00] the realization even though we've had you Kava for 40 years Justice Kavanaugh for military voters in [40:05] particular this is a perennial challenge about making sure that they can actually get their [40:09] ballots in on time I mean that's perhaps why you Akava voters in particular are a very popular [40:14] group for post-election day ballot would you say that the states that require receipt by election [40:19] day are disenfranchising voters no you're not they're not your honor I mean a reasonable [40:24] ballot deadline does not do that I would asterisk just there are the practical barriers uh for those [40:30] overseas military voters but for the uh citizens who are not within that class you would not use [40:37] the term disenfranchisement to say it has to be received by election day November 3rd rather than [40:44] uh I guess it would be five business days November 10th you would not use that term [40:48] to describe that correct I would not correct your honor and then picking up on Justice Alito's [40:54] questions Professor Pildes and others have said that late arriving [41:00] ballots open up a risk of white might destabilize the election results if the apparent winner the [41:06] morning after the election ends up losing due to late arriving ballots charges of a rigged election [41:11] could explode the longer after election day any significant changes in vote totals take place the [41:17] greater the risk that the losing side will cry that the election has been stolen end quote and [41:23] my question is my questions one is that a real concern two [41:30] does that factor into how we think about how to resolve the scant text and the maybe conflicting [41:38] or evolving history here I think I certainly respect the perception I think one thing notable [41:43] in this case and I think helpful is that um there there has not been a much much of a showing about [41:50] actual fraud from post-election day ballot receipt itself I mean I mean that was I think Justice [41:55] Alito referred to and I think this quote refers to the appearance of fraud and is that a good thing I [42:00] think that a real concern is that something we should be thinking about confidence in the election [42:05] process just just curious how we factor that in here right and I think it would go back to the [42:10] same answer I had for Justice Alito about uh a scant you know there simple text straightforward [42:15] text and respecting the limits of that text and looking at the animated history I think it really [42:20] was it was the double voting fraud concern I don't know that people have that particular concern I I [42:25] think you know obviously people can be uh you know unhappy [42:30] a result flips. I think Congress may be able to take measures to address that, [42:34] but I think there's no good evidence that Congress was doing that [42:38] beyond preventing double voting in this context. But if you have to have a deadline, which you [42:42] acknowledged, and if having a deadline of November 3rd rather than November 10th doesn't [42:47] for receipt, doesn't disenfranchise anyone, [42:51] why wouldn't it make more sense [42:54] to take account in some respect [42:58] of that concern as we think about how the text and history [43:02] fit together? Well, I think something that Congress was clearly [43:06] trying to do was adopting a simple rule in this text, and I think a very simple rule is [43:10] everybody must cast their ballot by Election Day. I mean, that's quite administrable. [43:14] I mean, if you have an Election Day ballot receipt deadline, there are certainly things to commend that. [43:18] I think you're alluding to some of those, Justice Kavanaugh, but there's also a question of when do I vote? [43:22] I'm not sure. Do I need to do it at 7, whatever it is, whereas [43:25] if somebody wants to get all the information possible, [43:28] they like voting on Election Day, you have a pretty nice, clear, simple rule, and that seems [43:32] to dovetail quite well. Well, the simple rule, but if it arrives on November 11th, you're out. [43:37] Right, but I think that's kind of baked into the risks you always get when [43:40] you're doing, there are always some risks, regrettably, with mail-in voting. [43:45] You can eliminate some of those risks by voting in person, but [43:48] The risks would seem the same, no matter [43:52] whether it's November 3rd or November 10th. In other words, that it could take [43:56] longer than a week for the mail-in. [43:58] I think that's a risk that you're not able to get there. [44:00] The risk is there, but I think if you have Election Day ballot receipts, and I think what we're addressing, I think, are more, [44:04] the way I might frame the issues are, these are policy points, the question is, did Congress wall off [44:10] states from debating these policy points? I think the answer is no. [44:14] And I think states could very reasonably say, you know, look, we do want to get counting and get a result very fast, [44:20] but we are concerned about these military voters, we do want voters to be able to get whatever information they want. [44:26] I mean, the weekend before, you know, that used to be a big deal. [44:28] In elections, at least, maybe it still could be in the future. [44:31] And I think a state could say, hey, look, federal law didn't wall us off from doing this. [44:35] We get that it has some things about it that other states might weigh differently, but we want to allow that for our voters. [44:41] I take your point, but it really goes to just thinking about what Election Day or day of election means. [44:46] But I take your point. Thank you. [44:48] Thank you, Your Honor. [44:49] Justice Barrett. [44:50] So I want to be clear about what your definition of finality requires. [44:55] Would it require finality if the voting process was to be a day of election? [44:57] Would it require finality if the vote arrives by Election Day as well? [45:01] So let's imagine an absentee ballot that's put in the mail or sent by common carrier well in advance of Election Day [45:08] and is received and put in the ballot box by Election Day. [45:13] Does that one have to be final? [45:15] Or in other words, would it be a problem for you that the U.S. Postal Service permits recall for those ballots that are sent in advance? [45:24] I guess what I would say is, yes. [45:25] I think that's a good question. [45:26] I guess what I'm asking is, do you have the same problem either way? [45:30] You've taken a lot of questions, and I have those questions, about what the effect of this recallability is. [45:35] And I guess my question is, I want to understand what your definition of finality is and whether it applies to the earlier absentee ballots as well. [45:43] Do they have to be final such that it would be illegal to recall them pursuant to whatever regulation the Post Office has? [45:51] Right. [45:52] I think I got it, Justice Barrett. [45:54] Let me see if I can do my best on it. [45:56] I mean, I think in theory, if Election Day has not passed, there could be a window for somebody to— [46:07] So it would be okay? [46:08] It wouldn't be illegal for somebody to recall a ballot before Election Day? [46:12] I guess I don't understand why. [46:14] I mean, if a state allowed that, Your Honor. [46:16] We don't allow that. [46:17] So it would be okay for the state—I know you don't allow it. [46:19] Right. [46:20] But I guess what I'm under—I guess I'm struggling. [46:21] Right. [46:22] Because if your definition of the election or the vote or casting the vote— [46:24] Right. [46:25] —requires finality, I'm trying to understand why that would be different before the election. [46:32] And I'm saying before the election. [46:34] I'm talking about receipt for earlier-sent absentee ballots and for later-sent. [46:38] It seems like the same rule should apply regardless. [46:40] But it seems like you're not—you're saying something different. [46:43] Yeah. [46:44] I'm having a—I guess I'm having a hard time conceiving kind of a dual-track rule in that circumstance. [46:49] So would it be—let me try to put it this way. [46:51] Would it be illegal for a state to permit absentee voting but permit recall? [46:58] Or just kind of be silent about this Postal Service regulation that permits recall or anything a common carrier did to permit recall? [47:07] Is recall a problem even if it's a possibility for those earlier absentee ballots? [47:12] Because you can't consider them final. [47:15] All these questions that you've been taking are about whether you could really consider the ballot to be final. [47:20] If you could recall it. [47:22] So I'm asking whether that same finality test applies for the earlier ballots. [47:27] And I'm not sure, Your Honor. [47:35] I mean, I think—I guess I just keep coming back to you can't recall or change your vote or make it— [47:40] And that's true no matter when you send it. [47:42] I think—I mean, certainly in our state. [47:44] And I think that's right, Your Honor. [47:46] But, I mean, as a matter of the federal law. [47:48] It just seems to me that your definition is correct. [47:49] Thank you. [47:50] And I think that your definition has to be consistent. [47:52] And it sounds like you're changing it for the earlier absentee ballots and saying finality has some kind of different force for the later received absentee ballots. [48:01] Right. [48:02] Well, I think a state has to do whatever it would need to do to guarantee that on Election Day all ballots—every cast vote is final and cannot be recalled. [48:13] I'm having— [48:14] But it doesn't have to be final at the time it's sent. [48:17] Because it's okay to recall it if you send it two weeks in advance. [48:19] If it's two weeks in advance and you change your mind, that's not a problem. [48:28] Okay, I withdraw. [48:30] I guess I'm having trouble seeing how the federal Election Day statute itself would necessarily— [48:33] Well, it's about your definition of election. [48:35] It's about your definition of what it means to cast a vote. [48:38] But let's put that aside. [48:40] Obviously, there's a lot of talk about history in this case. [48:42] Well, the Electoral Count Reform Act was passed in 2022. [48:46] And for the first time, it defined Election Day. [48:48] Should that matter? [48:50] So should we be looking at how Congress understood Election Day to mean and the period of voting, what it thought in 2022? [48:58] Or should we be looking at the late 19th century and the Civil War practices? [49:02] I think most vitally, it still remains 1845 as the key date, especially given that we have statutes that are trying to manifestly achieve uniformity in what is required of all federal offices. [49:14] So I do think 1845 is the key date. [49:16] So Congress is— [49:17] So Congress carried over in 2022 the same understanding of Election Day that had persisted throughout? [49:23] I think that's right. [49:24] Final choice of an officer. [49:25] Okay. Thank you. [49:26] Thank you, Your Honor. [49:27] Mrs. Jackson? [49:28] So let me just clarify. [49:29] This case is not about a Mississippi practice or policy related to recalling ballots. [49:33] Is that right? [49:34] That's right, Your Honor. [49:35] So I guess I'm a little confused about those kinds of policy questions. [49:41] And I guess— [49:42] I think that the Constitution's allocation of responsibility here actually makes this case about who decides. [49:54] I mean, there are a lot of policy questions. [49:57] Justice Alito ran through several of them. [50:00] Who gets to receive the ballot? [50:02] How long after can they be submitted? [50:04] Does it have to be postmarked? [50:06] I suppose we can add, is recall allowed, et cetera, et cetera. [50:10] But the question, I think, is whether Congress has precluded the states from making those calls, drawing those lines. [50:22] And your position, as I understand it, is no. [50:25] That's correct, Your Honor. [50:26] That the scantness of Election Day in the federal statutes actually is a point in your favor because it indicates that Congress was leaving it to the states to draw the various lines that might arise. [50:40] In this circumstance. [50:41] Is that right? [50:42] That's right, Your Honor. [50:43] And that's reinforced, for example, by the 1866 statute, which shows that when Congress wanted to be really prescriptive in this area, it was very prescriptive. [50:49] It described this is what the states have to do and so forth. [50:51] So if we were focused, really focused, on what we're asked to answer here, which is, are the states preempted by federal law from having post-Election Day ballot deadlines, you would say no. [51:09] No, no. [51:10] Congress didn't decide that. [51:11] Let me ask you about the history with respect to Bruin. [51:16] I guess I'm not sure I understood your answer to Justice Sotomayor because it seems to me that Bruin is not even the right methodology by which to be thinking about this. [51:29] Bruin applied to the Second Amendment because the Second Amendment incorporated a preexisting right. [51:37] And the point of the history and tradition test was to try to do that. [51:39] And the point of the history and tradition test was to try to evaluate the contours of that right. [51:43] We don't have that dynamic here. [51:45] We're trying, I thought, to figure out what Congress meant when it included Election Day in its federal statutes. [51:53] So it seems odd to me that the suggestion that the limitation on our understanding of Congress's intent is somehow tied to the states' practices. [52:05] I think that's right, Your Honor. [52:06] I think the other thing, I think the point I'd emphasize is that the idea of the Constitution is not just about the Constitution. [52:08] I think the other thing I'd emphasize is that the idea of embodying a preexisting right confirms that there's something very much unchanging. [52:13] And the thing that we know about election administration, it is very much been changing throughout the course of our country. [52:18] It's been changing throughout the course in a way that undermines the notion that there was one consistent practice, first of all, [52:26] or that Congress's law, the meaning of Election Day in the federal statutes, somehow was tied to what the states' practices were about that. [52:37] I mean, I think this is your question. [52:38] I think this is your original point, that there were lots of different practices. [52:41] And so to the extent we're saying, oh, you could only look at Election Day in the federal statute to mean exactly what the states were doing back at that time, [52:52] this imperils a lot of different things, not just post-Election Day ballot deadlines, right? [52:58] That's right, Your Honor. [52:59] And the only way to explain all of these changes is to read them in line with plain text and the limits of history, which is to say election is a final choice. [53:07] I mean, otherwise, it's not. [53:08] I mean, otherwise, you have to do what my friends have to do, which is, hey, look, we're going to pick out the one practice from these 19th century codes that we like, [53:15] ballot receipts, say that's what an election is, and just ignore in-person voting, qualifications checked on the spot by fellow voters. [53:21] And that's just not sound history. [53:23] Can I ask you one final thing about the amicus brief from the Society for the Rule of Law Institute? [53:28] Because I found it very interesting, and I didn't really know what your view of it was. [53:33] That amicus brief focused on the Electoral College. [53:37] And Congress is setting it up, you know, back in 1787 with the understanding that the casting of votes can happen on a particular day, and the receipt of those votes by election officials can happen on a different day. [53:54] And in fact, the way the Electoral College is set up, I think at the time, Congress permitted in 1792 about a month to elapse between the casting of votes, [54:06] which, by the way, it called Election Day, and the receipt of the votes by the electors submitted them to the President of the Senate up to a month after. [54:20] So I think that's, to the extent we're worried or thinking about historical evidence, that seems to me to be pretty significant and compelling historical evidence of Congress's understanding [54:31] of what was required by Election Day versus the receipt of the votes. [54:35] Thank you. [54:36] I think Congress had a very clear view of how the Electoral College was going to handle those ballots at some subsequent point, correct? [54:40] Yeah, I think that's well stated, Your Honor. [54:42] The other thing I would tie it to in the same amicus brief, and I think the brief, the amicus brief does a nice job of tying it to this, [54:48] is the, the key thing is choice, choosing. [54:51] The Constitution refers to choosing, choice, those, those kind of verbs, and that's why that sort of thing is allowed. [54:56] And the choice is made when you cast your vote under the electoral process system, when the electors cast their vote, right? [55:04] Right. [55:05] is distinguished. I'm just trying to make clear that the casting of the vote and the receiving [55:10] of the votes historically have been conceived of as two different things that can actually happen [55:16] at different times, right? I think so, Your Honor. Thank you. Thank you, Your Honor. Thank you, [55:21] Counsel. Mr. Clement. Mr. Chief Justice, and may it please the Court, all agree that elections for [55:29] federal office have to end on the day of the election specified by Congress, and all agree [55:36] that you can't have an election unless you receive ballots, and there must be some deadline for ballot [55:41] receipt. Nonetheless, Mississippi insists that ballots can trickle in days or even weeks after [55:48] Election Day. That position is wrong as a matter of text, precedent, history, and common sense. [55:54] Mississippi all but concedes that the original public meaning of election, [55:59] included by the Constitution, is not the same as the original public meaning of election. [55:59] Mississippi insists that ballots can be both offering to vote and the receipt of that vote or [56:02] ballot by election officials. And of course, the key distinction between voting and an election [56:09] is in an election it involves the combined action of voters and election officials, as this Court [56:14] underscored in its decision against Foster against Love. And of course, Mississippi insists that at [56:21] the time these statutes were passed, ballot receipt and the casting of the ballot were so [56:29] inextricably intertwined. [56:29] No one would have thought of one without the other. That seems to me to be a damning admission, but it also ignores the advent of field and proxy voting in the Civil War and the enormous efforts that states went to to ensure that all of the ballots, whether by proxy or by field vote, were received by Election Day. In the state's view, all of those Herculean efforts were for naught or were entirely gratuitous. Now, the state's position actually works even worse as a matter of common sense. [56:59] If somebody in Gulfport the day after the election asks, is the election over? The common sense answer is, no, it's not. The ballots are still coming in. And if somebody asks, who won? The truthful answer is, we don't know yet. The ballots are still coming in, and they may trickle in for weeks or months. And in fact, they may trickle in for weeks or months with or without a postmark in differing ways in differing states. That reality gives the lie to the idea that we have a uniform state. [57:29] So, I would say that the day of the election is the day, it's the last day in which all the ballots are cast and they are received into official custody. [57:44] So, how would you treat early voting as compared to late reception of votes? [57:52] So, I would say, I mean, you know, I think the best place to look for a treatment of early voting is the Chrysling decision. [57:59] And it's 말씀 given to us here by Judge Kleinfeld in the 9th circuit. [58:05] Because after Foster against Love, there was this suggestion in Foster against Love that maybe early voting is a problem. [58:11] He rejected that claim on two things. One is the distinct history of early voting, and the second was the idea that was explicit in the court's decision in Foster against Love. [58:20] The election day was the date of consummation. [58:23] So, I would say under our theory early voting is permissible. [58:27] Largely because it has a different history. [58:29] date where the election is consummated. [58:30] Would you spend a few more minutes on, or at least a little bit more time on the voting [58:39] during Civil War? [58:42] There was some suggestion that that's an example of late reception of votes. [58:50] And I think in your intro, and it was my thinking, that it was not, that proxy voting was a way [58:58] to make sure that the vote occurred on Election Day as opposed to afterwards. [59:04] Well, not surprisingly, Justice Thomas, you were exactly right. [59:07] So proxy voting is the thing that happened in the Civil War that is most analogous to [59:12] absentee voting. [59:14] And the thing that is most striking is I think five states had proxy voting. [59:18] Every one of those five states required the votes, the ballots to be received by election [59:22] officials back home by Election Day. [59:25] Now that's an incredibly inconvenient thing. [59:28] And I think that's a very important thing that was done in the Civil War to ensure the [59:33] ballots were received by Election Day. [59:36] And under the state's view, they didn't need to do that. [59:39] Now, it's really no different in the context of field voting because there were maybe a [59:44] dozen states, if you're not going to count the Confederate states, there were about a [59:47] dozen states that did field voting. [59:49] Again, every one of those ensured that the ballots were received into official custody [59:54] by Election Day. [59:56] And of course, most of the states went to enormous efforts to replicate the voting process. [59:57] And I think that's a very important thing. [59:58] The machinery of the ballot box and everything else in the field. [1:00:03] And some variation in that. [1:00:04] But the one thing that didn't vary at all was the ballots had to be received into official [1:00:09] custody by Election Day. [1:00:11] And just one last thought on this Civil War practice. [1:00:14] My friend's only real answer to the idea that at 1845 there was an understanding that everybody [1:00:20] would have had that, of course, the election involves both the offer to vote and receiving [1:00:25] the vote, the ballot, into official custody. [1:00:28] And the answer to that is, well, like nobody, the issue hadn't ripened. [1:00:31] That nobody had even thought that you could divide the two. [1:00:35] But the issue ripened in the Civil War. [1:00:37] And the issue ripened in such a way that every state required the ballot to be received into [1:00:41] official custody by Election Day. [1:00:44] And then that certainly informs what Congress is thinking in 1872 when they extend the presidential [1:00:50] Election Day deadline to the congressional race. [1:00:52] Mr. Clement, what do I do with the two states during the Civil War? [1:00:57] Well, the first is that the state, the state of Nevada, wrote out, Nevada, you say five [1:01:02] favor you, at least two don't. [1:01:06] Nevada simply designated three of the highest officers in command, didn't swear them in, [1:01:13] just said three officers in the command can create a ballot box or suitable receptacle [1:01:19] for votes and collect the votes of the soldiers with little further formality. [1:01:26] Those military officers then would mail those ballots in. [1:01:27] They would be counted whether they arrived on Election Day or after. [1:01:31] What do we do with Rhode Island that simply directed soldiers to deliver a written or [1:01:39] printed ballot with the name of the person voted for to the officer commanding the regiment [1:01:44] to which he belonged? [1:01:46] That officer wasn't sworn in as a state official either. [1:01:49] And receipt could happen thereafter. [1:01:53] So it's not, yes, many states believed, as they did at the time. [1:01:56] I'm not saying that they didn't. [1:01:57] I'm saying that they didn't. [1:01:58] But I'm saying that they did at the time that voting had to be in person, that voting had [1:02:01] to be not, it had to be by voice instead of by paper. [1:02:07] Lots of states had lots of beliefs about what a proper election should look on. [1:02:12] But how do we deal with the outliers? [1:02:14] Or you just want to ignore them? [1:02:15] No, I don't want to ignore the outliers. [1:02:17] I actually think Rhode Island and Nevada help me and my side of this case. [1:02:22] And I think that's because they did designate somebody, they might not have given him an [1:02:26] oath. [1:02:26] They designated somebody as an official to receive the votes. [1:02:31] And they had to come in. [1:02:32] So they're here. [1:02:33] What's the difference between the post office and a common carrier? [1:02:37] It's the official. [1:02:38] You want an individual person. [1:02:40] Is that it? [1:02:41] Well, I want somebody who's cloaked with government authority. [1:02:44] So that's one difference. [1:02:45] But there's a critical second difference. [1:02:46] But it's not state authority, meaning you're now expanding what you're saying as government [1:02:52] authority. [1:02:53] So what I would say is it was government authority. [1:02:56] And I would say that my understanding of the history is that all those federal officers [1:03:01] voluntarily accepted the responsibility, whether they took an oath or not. [1:03:05] And I think that's quite- [1:03:06] So could a neighbor and so could anybody else. [1:03:08] I'm not moved. [1:03:09] The point is that it permitted someone else to deliver the item, a final cast vote to [1:03:17] deliver it and be received after. [1:03:20] Under your theory of this case, and I think you and the government disagree on this, you [1:03:25] believe that absentee voting by the military and overseas voters, the various laws, that [1:03:32] federal laws under which states have proceeded with respect to those votes are illegal? [1:03:39] Or they're not saying what everybody has understood them to say, that states can accept absentee [1:03:44] ballots after the election? [1:03:49] Military and overseas ballots? [1:03:50] I don't think any vote is unlawful. [1:03:53] Let me try to address how I think you would reconcile. [1:03:55] You will cover with the election day statutes. [1:03:59] And to start, I think it's important to recognize that you will cover does not limited to the [1:04:04] federal general election. [1:04:05] So you will cover applies to primary elections to runoff elections and special elections [1:04:10] and federal general elections. [1:04:12] The election day statutes only apply to the general federal election. [1:04:16] So the way I would reconcile the two is to say that all the references in you cover to [1:04:20] state deadlines are perfectly fine, not preempted at all, not displaced at all. [1:04:25] Not even anomalous with respect to the primaries, the runoffs and special elections. [1:04:30] Then the court has a job to do in the federal general election as to say, like, kind of [1:04:36] which is the specific, which is the general. [1:04:38] I think the more logical way to do it would be to say that with the understanding in this [1:04:42] court, if you decide in our favor that for the federal general election, the ballots [1:04:47] have to be in by election day, I would say- [1:04:50] Maybe we should have another president now because wasn't it in Florida that they were [1:04:53] going to have a president? [1:04:54] I don't know. [1:04:54] I don't know. [1:04:54] I don't know. [1:04:54] I don't know. [1:04:55] I don't know. [1:04:55] I don't know. [1:04:55] I don't know. [1:04:55] I don't know. [1:04:55] I don't know. [1:04:55] I don't know. [1:04:56] I don't know. [1:04:56] I don't know. [1:04:57] I don't know. [1:04:57] I don't know. [1:04:57] I don't know. [1:04:58] With all due respect, that is the reddest of red herrings because what happened in the [1:05:02] 2000 election in Florida is that pursuant to a consent decree that was entered by a federal [1:05:09] court because Florida was violating the principle provision of UOCAVA, which says you have to [1:05:14] give the ballot absentee ballots to the overseas voters 45 days in advance. [1:05:19] Because Florida was violating that, there had to be a consent decree to create a remedy [1:05:24] that was not provided- [1:05:25] I wonder what happened was that the judge made up the deadline, not the state. [1:05:29] But I wanted to, how do you deal with the Soldier Voting Act in 1942 that permitted ballots for the extension of absentee ballots? [1:05:42] So the 1942 Act, at least as I understand it, again, is not addressed solely to general elections. [1:05:48] And then with respect to general elections, it says that the military special SVA or whatever it was, the special military ballot, had to come in by the time the polls closed on Election Day. [1:06:00] So I actually think the 1942 Act is fully supportive of our position here. [1:06:05] So the DOJ has been acting illegally when it has sued states for not following the act, the UCAVA. [1:06:18] No, again, remember that the UCAVA's principal protection is the provision, this is in 302 of the act, not 303 and 304, [1:06:28] but the 302 Act provision that says that you have to get the ballots to overseas voters 45 days in advance of the election. [1:06:37] And interestingly, in the single most important provision in UCAVA, it ties the deadline to the date of the election. [1:06:43] So what do we do with Congress saying process in the manner provided? [1:06:48] Well, the first thing that Congress said was that the UACAVA was going to exempt out a little part of it, but not everything. [1:06:53] And that at the time the hearings were being held on it, 12 states were identified as counting absentee ballots after Election Day. [1:07:02] So it just ignored it and decided it was going to exempt out a little part of it, but not everything. [1:07:09] With respect, Justice Sotomayor, that's why you have to remember that UACAVA is not focused only on the federal general election, [1:07:16] which is the only thing where Congress is going to be able to do that. [1:07:18] So I think that's the only thing Congress is going to be able to do. [1:07:18] Congress has specified a federal deadline. [1:07:21] But Mr. [1:07:21] So it makes perfect sense. [1:07:22] But does that help you or hurt you, the fact that it is broader? [1:07:27] I mean, it's broader in the way that you describe. [1:07:30] It applies to all of these different elections, but it doesn't make the distinction that you are making. [1:07:35] It says with respect to all of them, state absentee ballot deadlines should apply. [1:07:42] You're encouraging us to treat the general election differently because you interpret. [1:07:48] You interpret. [1:07:48] You interpret. [1:07:48] You interpret. [1:07:49] You interpret. [1:07:49] You interpret. [1:07:49] Election Day with respect to the general election statute to have a defined time as of Election Day. [1:07:56] But that is not what this statute appears to be doing. [1:08:00] So I think it helps us. [1:08:02] And I think it helps us because to the extent you're concerned with those references to state election deadlines, they're inevitable. [1:08:08] If Congress is going to address anything other than the general federal election, it has to refer to the state deadlines for receiving ballots because there are no federal deadlines for any election. [1:08:18] Other than the federal general election. [1:08:20] If that's true, Mr. Clement, you would think that Congress would say, you know, with respect to the deadlines that there's no separate federal requirement, X rule. [1:08:29] And with respect to the deadlines that there is a federal requirement, Y rule. [1:08:33] But it doesn't do anything like that. [1:08:35] It treats them all of a piece. [1:08:36] And we know that for many of these elections, states were setting their own deadlines. [1:08:40] And Congress in passing these statutes didn't suggest any kind of distinction between those elections. [1:08:47] And these elections. [1:08:49] So, Justice Kagan, as with almost every statutory question that comes to this court, Congress could have made it easier. [1:08:55] They could have done all that. [1:08:56] And they didn't. [1:08:57] And I think you just have to reconcile. [1:08:58] So what do we take from that? [1:09:01] I mean, it seems what they took from that is that they thought that this state function of setting ballot receipt deadlines was something that was a state function. [1:09:11] And that's what they took from it. [1:09:13] And so they wrote the statutes this way. [1:09:15] Where with respect to all elections. [1:09:17] The states were setting their own receipt deadlines. [1:09:20] So I don't think I don't see that in the text. [1:09:23] That doesn't seem even logical to me. [1:09:25] I wouldn't think the one place we were going to especially defer to the states with respect to the federal general election deadline is with overseas and military voters where the interests of the federal government are probably paramount. [1:09:35] But I just want to be clear about this. [1:09:37] If you read the statutes different and want to reconcile them the way that the SG does, we have no objection to that. [1:09:44] We just think the better way to read these two statutes. [1:09:47] Is to reconcile them than the way that we do. [1:09:49] And that would have one benefit, which is don't forget that in at least 20 states, they take the election day ballot receipt deadline seriously. [1:09:59] So if you simply say in this case that that election day ballot receipt deadline is true of all 50 states, then every oversee voters, every military voter is going to be treated the same. [1:10:10] And they'll still have 45 days to get their ballot in. [1:10:12] And one other thing just about Mississippi in particular. [1:10:15] Mississippi has. [1:10:17] Provisions in its election code that are specifically accommodate overseas military voters and overseas voters. [1:10:23] And it's not the ballot extension deadline that we have challenged here. [1:10:26] There is a specific provision that says for you, a cover voters and you a copper voters only they can email their ballots. [1:10:33] So like the idea that anybody is going to be disenfranchised here when the overseas voters and only the overseas voters have the option of emailing in the absentee ballot that they get from Mississippi. [1:10:46] Seems to me to. [1:10:46] Completely miss be misplaced. [1:10:48] And the concern should really be the heartland cases. [1:10:51] And remember, as Justice Alito alluded to, you have eight states that don't even require a postmark. [1:10:57] And there is nothing in Mississippi's theory that turns on the existence or the non existence of a postmark. [1:11:04] And that's probably a good thing because the post service has made clear that they don't even postmark all of the mail and postmarks have their own problems. [1:11:12] I mean, the main mailbox, the post box in post office, rather. [1:11:16] In Chicago stays open 24 seven. [1:11:20] So when all the other polls close in Illinois or every other state at eight p.m. [1:11:25] Post box, the post office is still open till midnight. [1:11:28] Now, I'm not here to say that there could ever be voting fraud in Chicago, but but the possibility that there's a four hour window where people could go get their ballots absentee ballots postmarked after all of the returns are in and they know that, oh, this this is the election where these things. [1:11:46] Could turn the result that does not seem entirely. [1:11:48] So is your argument that we get. [1:11:50] Can I ask you a question about the offer to vote in the vote? [1:11:54] So historically, it seems like the offer to vote was then you had to adjudicate the voters qualifications. [1:11:59] And then if the qualifications were met, then the the official received the vote and then it was put into the ballot box. [1:12:06] And as I understand it, Mississippi still has sort of a similar system because they have to adjudicate voter qualifications as well as accept the vote. [1:12:13] So you sometimes say, you know, you. [1:12:16] And the United States when the ballot box closes and you sometimes say receipt, are those two different things? [1:12:23] And do the voters qualifications have to be adjudicated by Election Day as well? [1:12:28] I don't I don't think they're exactly the same thing. [1:12:30] I mean, in some sense, I think the ballot box closing is a nice kind of common sense capture for the idea that the election ends on Election Day. [1:12:38] Now, I think with respect to the voter, the you know, the candidate, the qualifications challenge, rather, most of that is solved in the current system. [1:12:46] By. [1:12:46] Right. [1:12:46] Right. [1:12:46] Right. [1:12:46] So we don't really have a clear explanation for that. [1:12:48] And I think that is obviously the reason why we don't have a clear explanation for the voter registration requirements, which they didn't have historically. [1:12:55] So we think the critical thing is there are two things that have always been absolutely indispensable in elections, and that's the casting, but also the receipt into official custody. [1:13:04] And one thing I want to make clear about this is Mississippi still takes receipt into official custody very seriously. [1:13:11] And it is indispensable. [1:13:13] They just have a different deadline. [1:13:14] They have a five day deadline. [1:13:16] from Mississippi, but they have an even bigger problem in my mind, which is the November [1:13:20] 11th problem, which is to say, as Justice Kavanaugh pointed out, if the ballot arrives [1:13:25] six business days late, Mississippi doesn't count it. [1:13:29] It's a nullity, and under the state statute, they destroy it. [1:13:33] But let me return you to the adjudication question, because that's really—you know, [1:13:36] the Mississippi local officials brief says that they do not adjudicate the qualifications [1:13:41] of all ballots received even by Election Day, because it takes them more time to compare [1:13:46] the signatures and process them. [1:13:48] And I'll just get cut to the chase. [1:13:50] The heart of my concern is that historically, it seemed like both of those things happened [1:13:54] on Election Day, whether we're talking about Civil War, voting on the field, et cetera. [1:13:58] But I understand that under your theory, we can separate those and say that only receipt [1:14:04] matters, but adjudication can in fact happen afterwards. [1:14:07] Is that correct? [1:14:08] I mean, that's the position we're taking in this case. [1:14:10] I mean, I haven't—you know, I've spent enough time studying the Civil War history [1:14:14] on ballot receipt. [1:14:16] So I haven't studied everything about that election qualification. [1:14:21] My sort of first cut answer standing here is that can be understood as part of the canvassing [1:14:25] process, and that can take place after. [1:14:28] But I guess, why can you separate out if historically those two went hand in hand, that the qualifications—there [1:14:33] was the offer to the vote and vote—it seems odd to say that the election is concluded [1:14:39] by receipt when historically both of those things happened at the same time. [1:14:43] So why is that one piece of history poor? [1:14:45] I mean, I don't know. [1:14:46] I mean, I think it's a great question. [1:14:47] I think it's a great question. [1:14:48] I think it's a great question. [1:14:49] And I think that's the answer. [1:14:50] So I think that's the answer. [1:14:51] I think that's the answer. [1:14:52] So I think that's the answer. [1:14:53] So I think that's the answer. [1:14:54] And I think that's the answer. [1:14:55] I think that's the answer. [1:14:56] The answer is the fact that in this time, the most important thing is that you have [1:14:57] to have a receipt that's not plucked out. [1:14:58] So two things. [1:14:59] One, maybe I have another challenge that I haven't thought of, so I don't want to [1:15:00] like utterly foreclose that. [1:15:01] But the reason I'm focused on ballot receipt is A, it's what's directly at issue here. [1:15:02] But also B, it's the thing that to this day, every state considers indispensable. [1:15:03] No state. [1:15:04] Washington is the one that lets 21 days go by. [1:15:07] But no state says that you don't have to have a receipt, ballot receipt deadline at all. [1:15:13] And under Mississippi law, it's not, despite what they want to tell you, the ballot is [1:15:18] not final when it's submitted. [1:15:20] The ballot is final when it's received by election officials within five days. [1:15:25] And you can have all the certifications that this was before Election Day and I haven't [1:15:28] notarized. [1:15:29] And if it comes in on the sixth business day, this is the November 11th problem. [1:15:34] What the state does is they treat it as a nullity and under the state statute, they [1:15:37] direct it to be destroyed. [1:15:40] So the ballot doesn't become final just when it's submitted. [1:15:44] The ballot becomes final when it is submitted and under Mississippi law, it is received [1:15:48] into official custody by the registrar within five business days. [1:15:53] That's finality under Mississippi law. [1:15:55] And our humble submission is finality should take place on Election Day. [1:15:59] Thank you, counsel. [1:16:00] Justice Thomas, anything further? [1:16:01] Justice Alito? [1:16:02] I'm sorry. [1:16:03] I'm sorry. [1:16:04] I'm sorry. [1:16:04] We have lots of phrases that involve two words, the last of which, the second of which is [1:16:12] day. [1:16:13] Labor Day, Memorial Day, George Washington's birthday, Independence Day, birthday, and [1:16:20] Election Day. [1:16:22] And they're all particular days. [1:16:25] So if we start with that, if I have nothing more to look at than the phrase Election Day, [1:16:32] I think this is the day in which— [1:16:33] in which everything is going to take place, [1:16:37] or almost everything. [1:16:38] And then we have three points in time, 1844, 1872, 1914. [1:16:45] And we can ask, what would people [1:16:47] have thought on those days is meant by this phrase, [1:16:50] election day? [1:16:51] Which of those should we choose? [1:16:53] Which of those dates should we choose? [1:16:56] Well, I think you could choose any of the three. [1:16:59] I mean, honestly, I think the single best one, [1:17:01] if you're just going to choose one, is 1872. [1:17:04] And the reason I say that is because 1914 [1:17:07] is the latest in time, but that's [1:17:08] the one that Congress gave the least thought to, [1:17:11] because it was right after the 17th Amendment. [1:17:13] They just said, yeah, whatever the rule [1:17:14] is for the House of Representatives, [1:17:16] we'll use that for the Senate. [1:17:17] OK, so in 1872, someone sees election day, [1:17:21] and maybe they start with the idea, [1:17:23] OK, it's a particular day. [1:17:24] And then they say, but I remember the Civil War. [1:17:27] And a big exception was made. [1:17:29] There were different practices. [1:17:31] It wasn't the Civil War. [1:17:32] It wasn't everybody going to a particular polling place [1:17:35] and voting. [1:17:36] So what then can we take from that? [1:17:39] Should we just take from that, well, [1:17:40] this was an incredible national emergency [1:17:43] where extraordinary measures had to be taken. [1:17:47] What should we take from that? [1:17:49] What would an ordinary person have thought election day [1:17:51] meant in 1872? [1:17:53] I think they would have said that's the day by which, [1:17:56] at a bare minimum, the ballots have [1:17:58] to be cast and received into official custody. [1:18:01] And I think they would have, to the extent [1:18:03] they were thinking about the Civil War history, [1:18:05] I think the thing that would have impressed them [1:18:07] is that even at a time of great national emergency, [1:18:11] every one of the states insisted that the ballots [1:18:14] be received into official custody by election day, [1:18:17] whether by proxy or by field voting. [1:18:19] Nobody said, well, you know, it's a Civil War. [1:18:23] Let's give them a month. [1:18:25] Nobody said that. [1:18:27] And people literally went into harm's way in order to do field [1:18:31] voting. [1:18:31] And they all did it by election day. [1:18:35] That seems to me to powerfully reinforce the idea [1:18:38] that in 1872, if you told anybody, hey, all this means [1:18:42] is you got to cast your ballot, but the state can receive it [1:18:46] for up to 21 days later with or without a postmark, [1:18:49] I think they would have thought that you were talking [1:18:52] about a different country. [1:18:53] Let's take the last of the days, 1914. [1:18:56] My understanding is that Maryland [1:18:57] departed from your position a couple of years after that. [1:19:01] Did anybody say at that time, wow, Maryland [1:19:03] is violating the election day statute? [1:19:07] I mean, I don't know that they did in 1918. [1:19:09] I don't know all the details of that. [1:19:11] I think actually the first couple of these statutes [1:19:14] that my friends try to count really [1:19:16] are something different, which is they really [1:19:18] allowed you to sort of vote in one district by election day [1:19:22] and then have that election official give it [1:19:25] to another election official. [1:19:27] So I don't think some of those count. [1:19:29] What I would say, though, is in 1944, I'm not sure. [1:19:31] I'm not sure. [1:19:31] I'm not sure. [1:19:32] There was Montana passed an extraordinary law [1:19:35] that tried to extend the ballot deadlines for ballot receipt. [1:19:39] And they did it in World War II. [1:19:41] And they did it for the best of intentions. [1:19:43] And in the Maddox case, which the party cite in the briefs, [1:19:46] it's this kind of extraordinary case [1:19:48] where the Republican Party and the Democratic Party [1:19:51] of Montana both joined forces to go to the Montana Supreme Court [1:19:55] and said, is this law lawful? [1:19:57] And the Montana Supreme Court said, it's not lawful. [1:20:00] It violates state law. [1:20:01] But they also said it violates the federal law [1:20:04] specifying election day. [1:20:06] Thank you. [1:20:08] Justice Sotomayor? [1:20:09] But the rule of decision was based on state law in Maddox. [1:20:12] What is it? [1:20:13] I disagree. [1:20:14] I mean, you can all read it for yourself. [1:20:15] I mean, I know my friends on the other side say that. [1:20:17] I've read the case like seven times. [1:20:19] In DC, I vote by going to a ballot box that's [1:20:24] on the city streets, all over the city streets. [1:20:28] Is that receipt by a state official? [1:20:30] I just go to the ballot box. [1:20:31] It's locked. [1:20:33] I don't know and don't remember if it's time stamped or not. [1:20:37] But the city, I don't even know if it picks it up [1:20:41] before election day. [1:20:42] It certainly picks it up at some point. [1:20:46] Is that legal under your theory? [1:20:47] I think that's compliant with the federal election day [1:20:49] statute. [1:20:50] Why? [1:20:50] There's no state official who has received it. [1:20:52] A ballot box has received it. [1:20:53] It's official state custody. [1:20:55] And I think it's important to remember [1:20:57] that when ballots come into official state custody, [1:21:01] and this is true under Mississippi law as well, [1:21:03] at that point, the state treats it very seriously [1:21:06] and establishes a chain of custody. [1:21:08] I mean, if you want to look in the petition appendix [1:21:11] at Mississippi statutes, the provision that we're- [1:21:15] So it's different for you in kinds [1:21:18] because a military officer like Rhode Island and Nevada [1:21:22] during the Civil War, even though they [1:21:25] were federal officers, not sworn in in the state, [1:21:28] they were official enough? [1:21:30] Yes. [1:21:30] Yes. [1:21:31] Is that it? [1:21:32] It was official. [1:21:32] An empty ballot box with no person next to it [1:21:35] is official enough? [1:21:37] So it- [1:21:38] But the Postal Service is not. [1:21:40] The Postal Service is not. [1:21:41] I don't know all the details about what [1:21:43] Nevada and Rhode Island did. [1:21:44] I'm actually not even sure the Nevada statute was ever [1:21:46] implicated because Nevada didn't become a state [1:21:48] until the Civil War was basically over. [1:21:50] But in all events, I think the statute that's issued here [1:21:53] is worth reading. [1:21:54] If you look at 89A of the petition appendix, [1:21:56] I mean, they go to Mississippi once it's in the ballot box. [1:22:00] And this is true of the absentee ballots that [1:22:02] are received within five days. [1:22:04] They go into lockdown. [1:22:05] The registrar is told to record the number of ballots [1:22:10] in the box at the end of every day. [1:22:12] They are specifically treated essentially [1:22:15] as to have a chain of custody to ensure [1:22:17] that if somebody alleges there was monkey business [1:22:19] in this election, they have a clear record of chain [1:22:22] of custody that can show, no, there was not. [1:22:25] There's nothing like that when you drop it in the mailbox. [1:22:27] There's nothing like that when you use FedEx. [1:22:30] And I don't know, like, I mean, you know, [1:22:32] they say it's illegal to recall your ballot. [1:22:34] But the post office allows you to do that. [1:22:37] The FedEx allows you to do that, as Justice Gorsuch indicated. [1:22:41] I don't think there's any way the state would even [1:22:42] know it happened. [1:22:43] We have a state government official lawyer telling us [1:22:47] on behalf of the state how to read their laws. [1:22:51] Where are we on an issue that was forfeited below and not [1:22:55] raised below are going to assume to the contrary now? [1:22:59] It was right. [1:23:00] It was raised below. [1:23:01] This was raised in the reply brief in the Court of Appeals. [1:23:03] When my friend referred to it not being raised to the reply [1:23:06] brief, I assume he was referring to in the Fifth Circuit. [1:23:08] But it's in the Fifth Circuit decision. [1:23:10] So it's properly before this court. [1:23:13] Justice Kagan. [1:23:14] Mr. Kerman, I'm wondering what you make of the 2022 amendment. [1:23:18] Because that pretty clearly suggests [1:23:21] that voting can take place not just on a day, but in a period. [1:23:25] And what are we to make of the fact that Congress just [1:23:29] a few years ago. [1:23:30] Said there's a period of voting and we're fine with that. [1:23:35] So to me, the most sort of striking thing, [1:23:37] if we're talking about the same statute, the Electoral Count [1:23:40] Reform Act, ECRA or whatever it is. [1:23:42] To me, the most striking thing is [1:23:44] there's one change to the federal Election Day statute [1:23:46] in particular. [1:23:47] And it creates a possible exception [1:23:49] for force majeure events. [1:23:51] And I would view that as the only exception [1:23:53] that Congress created. [1:23:54] Yeah, but the exception for force majeure events [1:23:57] assumes a baseline of a period of voting. [1:24:00] It talks about a state modifying the period of voting [1:24:05] for those special events. [1:24:07] But the baseline is that the state has a period of voting, [1:24:10] which it then modifies for force majeure events. [1:24:14] So I think that this is not like some special exception. [1:24:17] It's an exception in the statute that [1:24:20] assumes that a state is going to have not a day of voting, [1:24:24] but very likely a period of voting. [1:24:26] So I would think that the most the period of voting would refer [1:24:30] to is the practice of early voting, which we're not [1:24:32] taking issue with here. [1:24:34] And as I said, that has a distinct history. [1:24:36] But I don't think they were saying [1:24:38] the period of voting could last until after the election. [1:24:40] Because if that's what they had in mind, [1:24:42] there would be no reason to create an exception [1:24:44] for force majeure events. [1:24:45] That would just be part of the period. [1:24:46] And could you tell me, going back to this [1:24:49] we're not taking issue with early voting, how it is that [1:24:52] you're not taking issue with early voting? [1:24:54] Because every time I sort of try to state what your rule is, [1:24:59] it seems to me. [1:25:00] Yeah. [1:25:00] It's a rule that prevents early voting. [1:25:02] Because you're basically saying there [1:25:03] are two things that have to happen, [1:25:05] and they have to happen on election day. [1:25:08] And it's the voting and the casting of the vote [1:25:10] and the receipt of the vote. [1:25:12] And both of those things have to be on election day. [1:25:14] And just like a normal person says, OK, well, [1:25:17] when I early vote, I'm not doing that on that first Tuesday. [1:25:23] So I get why an ordinary person would think that. [1:25:26] And for what it's worth, like a couple of ordinary people [1:25:28] read your Foster Against Luck [1:25:30] decision and thought, whoa, this gets rid of early voting. [1:25:33] And they brought challenges in the Ninth Circuit, [1:25:35] and they brought challenges in the Sixth Circuit. [1:25:37] And all those challenges were rejected. [1:25:38] They did it right in the wake of. [1:25:40] Let me suggest to you that they were rejected, [1:25:41] because it just seems inconceivable [1:25:43] that on the basis of this kind of evidence, [1:25:46] we would reject these practices that are so [1:25:48] entrenched in 30 states. [1:25:50] But the problem still remains is that your theory [1:25:53] would have us reject them. [1:25:55] No, I don't think it would. [1:25:56] And I mean, it's my theory, so I'll tell you what it is. [1:25:59] These things have to be rejected. [1:25:59] They have to be consummated by election day. [1:26:02] I'm not making that word up. [1:26:03] That's not the word I would make up if I were making up words. [1:26:06] But it's the word that this court used [1:26:08] in Foster Against Luck. [1:26:10] So that's where the theory comes from? [1:26:12] It comes from the word that this court used in Foster? [1:26:15] Yes. [1:26:16] And that was a word that was actually. [1:26:17] I mean, don't look so, you know, because a word that we used [1:26:21] in Foster is the premise for your being [1:26:24] able to separate Mississippi's law [1:26:29] from every early voting law in the world, [1:26:31] even though your basic theory should [1:26:33] say that the early voting laws are also verboten? [1:26:36] No, with respect. [1:26:37] I mean, I said two things when I first answered this question. [1:26:40] The differential history. [1:26:42] And, you know, I think it's worth reading Judge [1:26:44] Kleinfeld's opinion on this. [1:26:46] It's a Keesling case in the Ninth Circuit, [1:26:48] because he goes through this in quite some detail. [1:26:50] And he admits there's actually a pretty good argument based [1:26:52] on the text and Foster that early voting is problematic. [1:26:58] But Foster doesn't. [1:26:58] He's a long time voter. [1:26:59] And he's a long time voter. [1:26:59] nonetheless, even though he thinks it's a pretty good argument, comes to the conclusion, [1:27:02] not because he thought it was crazy, but because the history is different, which was marshaled in [1:27:06] that case in particular, and Foster talks about everything needing to be consummated by election [1:27:12] day. And I don't think it was just a random word. It's trying to explain the unanimous decision in [1:27:17] Foster against Love, which says, you know, there was voting, and there was receipt of ballots, [1:27:24] and the problem was it all happened a month too early. [1:27:27] Thank you. [1:27:28] Justice Gorsuch? [1:27:30] On early voting, I just want to see if I've got it right. [1:27:35] Both sides agree that there needs to be a final decision by the voter and receipt by election day. [1:27:45] Correct? [1:27:47] Well, I don't think so. I don't think they agree with receipt by election day. [1:27:52] Receipt by somebody. [1:27:54] Okay. I'm going to do that. [1:27:56] The reason I trip up on that. [1:27:57] I know, but just one. [1:27:58] Okay. Okay. Sorry. [1:27:59] This is, I'm just trying to make sure I understand. There needs to be some final decision by the voter and receipt by somebody by election day. [1:28:08] On that, I think you two agree. I think the disagreement is receipt by whom. And for you, it's an election official. [1:28:17] And for your friend on the other side, it could be my neighbor. Is that a fair summary of your views? [1:28:25] Because it seems to me you both agree. [1:28:27] Okay. [1:28:28] That the final decision needs to be made by election day, which both of you, therefore, would permit early voting. [1:28:35] So, I don't disagree much. [1:28:38] Okay. [1:28:39] But what I would say is my friend's position is a little bit more nuanced than that. [1:28:42] Because he thinks that sort of selection and submission to the somebody before election day is a necessary condition. [1:28:51] But it's not sufficient because Mississippi law cares very much about receipt by the registrar. [1:28:57] And if the vote is submitted to the somebody before election day, but it's not received by the registrar until the sixth day, it's a nullity. [1:29:06] So, that's just the subtlety that I wanted to add. [1:29:08] No, I appreciate that. [1:29:09] Because at least as I read Mississippi law, you're right that it isn't accepted until an election official marks it accepted. [1:29:19] That's its own rule. [1:29:21] But it seems to be running away from that here by saying, at least as I'm understanding it. [1:29:26] I might be misunderstanding it. [1:29:28] But at least as I understand it. [1:29:30] Because they're saying, no, once it goes into FedEx or to my neighbor or whomever, it's received effectively on election day. [1:29:38] See, I don't think they've quite gone that far because, you know, they can try to quibble about the sort of receipt rule in the reg. [1:29:46] But the statute itself absolutely requires receipt by the registrar within five days. [1:29:52] Yeah. [1:29:53] And then the statute itself goes on to say that if it's not received by the registrar, it's not accepted. [1:29:54] Yeah. [1:29:55] And then the statute itself goes on to say that if it's not received by the registrar, it's not accepted. [1:29:56] Yeah. [1:29:57] And then the statute itself goes on to say that if it's not received by the registrar, it's not accepted. [1:29:58] It's a nullity. [1:29:59] Even though it was submitted, even though it went to FedEx. [1:30:00] It's a nullity. [1:30:01] And it must be destroyed. [1:30:02] I mean, Mississippi takes it, receipt deadline, so seriously that if you miss their receipt deadline, your ballot is destroyed. [1:30:09] If we were to rule against you, is there anything that would limit states from allowing receipt by election officials up until the day of the next Congress? [1:30:21] Oh, the slippery slope problem on the other side, I don't think there's a problem there. [1:30:23] Oh, I see. [1:30:24] On the other side, I don't think there's anything that would stop that. [1:30:27] And maybe the next state can figure out a way to have an election without even anybody receiving anything. [1:30:32] I don't know. [1:30:33] But that seems to me to be a large reason for why election day should mean election day and election should mean casting and receipt into official custody, to stop that slippery slope. [1:30:45] On time, and how about means? [1:30:47] Do you see any principled way we could draw a line on means and say, okay, common carriers are different than Bob? [1:30:53] Yeah. [1:30:54] See, I think it's tricky, especially because all of these statutes purport to be time regulations, not manner regulations. [1:31:01] And the thing to keep in mind is that under Article II, the congressional power is limited to time regulations. [1:31:08] Manner is left to the states under Article II's election clause or electors clause. [1:31:12] So it's a little different than Article I, where Congress, if it wanted to, could correct the means. [1:31:17] And so that's why I think it's either all or nothing in terms of their position. [1:31:21] And they have no basis for distinguishing the states that say, oh, we're going to have to do this. [1:31:23] And we have to make sure that we're doing it. [1:31:24] And so, there is no basis for distinguishing the states that say, like, Illinois, that say 14 days with or without a postmark. [1:31:28] By anybody. [1:31:29] By anybody. [1:31:31] Justice Kavanaugh. [1:31:33] Can I follow up on General Stewart's who decides argument? [1:31:38] I think if you were looking at the text in isolation, day for the election, your first instinct might be in-person voting on that day is what that text literally meant. [1:31:50] But, of course, you acknowledge early voting. [1:31:52] early voting you acknowledge absentee voting are consistent with the statute [1:31:57] and then we have a obviously a range of historical practices that deviate from [1:32:04] that text if you thought literally it meant in person voting on that day and [1:32:10] then what General Stewart says is well given all that history you can't read it [1:32:15] literally and I think Professor Morley's amicus brief says this as well and you [1:32:21] have to take account of that historical practice and really it's up to Congress [1:32:25] to fix this if they think there's a policy problem which was going on in the [1:32:31] states I think that's a summary of some of what he's saying leave it up to [1:32:35] Congress for all these policy concerns I just want to get your response to how we [1:32:40] think about the historical practice and the text and then the who decides sure [1:32:45] so on the historical practice the thing that I think is remarkable is this [1:32:50] unbroken [1:32:51] historical tradition at least from 1845 to 1914 there is no example of somebody [1:32:58] of an election with a state having a ballot receipt deadline that's that's [1:33:03] other than by the Election Day so nothing I mean they cobbled together one [1:33:08] state at a time to get them starting in 1918 and I think some of those statutes [1:33:12] are distinguishable but it's common ground that there's nothing during the [1:33:15] whole time that these statutes are enacted where you don't have ballot [1:33:20] receipt by a [1:33:21] election day so to me if we're going to do original public meaning and then yeah [1:33:26] Congress could fix this either way however you decide this case you're not [1:33:29] going to have the last word Congress is going to have the last word but if we're [1:33:33] going to take original public meaning seriously I think the reason Congress [1:33:36] hasn't revisited this is because it doesn't have to it's already fixed this [1:33:39] problem now in the Morley brief you know I would take the bitter with the sweet [1:33:43] on that which is what he says is you know I don't think the text gets you all [1:33:47] the way there I beg to differ I think the text original public meeting gets [1:33:51] you all the way there [1:33:51] but what he says should be the tiebreaker is what rule does a better [1:33:55] job with dealing with actual or perceived fraud and one of the things I [1:33:59] found striking in that brief is he quotes senator Atherton from 1844 debate [1:34:05] leading to the 1845 statute and Atherton says in response to some [1:34:11] argument that I will you haven't proved all the fraud or whatever that was going [1:34:15] on and the pipe laying scandals and all of those other things because it wasn't [1:34:18] just crossing lines and he says real or perceived [1:34:21] it doesn't make a difference because even perceptions of fraud are going to [1:34:27] make a huge difference in undermining public confidence in the elections and [1:34:31] you I think quoted from Professor Pildes who i think got this exactly right I [1:34:36] mean if you have an election and the election is going to turn on late [1:34:40] arriving ballots in a way that means what everybody kind of thought was the [1:34:45] result on election day ends up being the opposite a week later 21 days later the [1:34:51] the losers are not going to accept that result. [1:34:54] Full stop. [1:34:55] They won't. [1:34:56] And that is bad for our system. [1:34:58] And so if you think there's a little bit of ambiguity [1:35:01] and we're in a post-Chevron world, [1:35:02] so you have to resolve it, I would [1:35:04] resolve it in the favor of reading the statute [1:35:07] to eliminate fraud or perceived fraud in election. [1:35:11] And that, I think, would cause you to rule it out. [1:35:13] Why have so many states allowed this then? [1:35:16] So states have only allowed it relatively recently, [1:35:19] as one of your questions averted to. [1:35:22] I think one reason that they've done it [1:35:24] is some states do want to accommodate [1:35:27] overseas or military voters. [1:35:29] I do think that there are other ways [1:35:31] to do that than the ballot deadline, as I've talked about. [1:35:34] And I think Mississippi's voted with their feet. [1:35:36] I don't think anybody's going to be disenfranchised [1:35:38] in Mississippi when you can vote. [1:35:40] Only if you're overseas, you can vote by email. [1:35:43] So I think Mississippi solved that in a much more targeted [1:35:45] way. [1:35:46] So I think that's at least kind of part of the way [1:35:49] that I would think about why states have done it. [1:35:51] And then really, the other, there [1:35:53] was an uptick in COVID as sort of a one-time accommodation [1:35:57] for COVID. [1:35:59] And a lot of states did it for COVID and then sort of retreated. [1:36:03] Mississippi, for whatever reason, [1:36:05] stuck with what they did for the first time in COVID. [1:36:08] You were asked about the 2000 election. [1:36:10] I don't think you were able to finish that answer. [1:36:12] Do you have more you want to say about that? [1:36:13] Yeah. [1:36:14] I mean, I just want to be emphatic that that is [1:36:16] the reddest of red herrings, because what happened [1:36:18] in 2000 was that the voting deadline was extended pursuant [1:36:23] to a consent decree. [1:36:24] And the reason there was a consent decree [1:36:26] is that Florida had violated the principal protection of UOCAVA, [1:36:30] which is getting the absentee ballots to the voters overseas [1:36:34] well in advance of the election. [1:36:36] And so having blown that deadline, [1:36:38] there was a consent decree that extended the receipt date. [1:36:43] We don't have any quarrel with that. [1:36:45] Federal courts have the authority to remedy, [1:36:48] but they have to do it in a way that's [1:36:50] not going to be a violation of the UOCAVA. [1:36:52] And I don't think extending the deadline is off the table [1:36:55] as a judicial remedy, though actually, I [1:36:57] think in 2026 as opposed to 2000, maybe the judicial remedy [1:37:01] would be to let the UOCAVA voters vote by email, [1:37:04] even in a state unlike Mississippi that [1:37:06] doesn't allow it. [1:37:07] We looked at it. [1:37:08] A majority of states allow overseas voter either fax [1:37:12] or email voting. [1:37:13] So I think that would probably, in 2026, [1:37:15] that would be the better remedy. [1:37:16] But in 2020, pursuant to consent decree, that was pretty much, [1:37:18] perfectly permissible. [1:37:19] So anybody who tells you the 2000 election came out [1:37:22] different is not looking at the facts of that Harris [1:37:25] case and the consent decree. [1:37:26] Last one. [1:37:27] If you were to prevail here and say [1:37:29] our decision was issued in June, Purcell issues with the states [1:37:37] for the upcoming fall elections? [1:37:39] I don't think so. [1:37:40] I think this issue, because it really sort of just [1:37:44] deals with the state and the receipt of the ballots, [1:37:47] I think. [1:37:48] I think June would give them plenty of time. [1:37:50] And remember, this issue only affects the general election. [1:37:53] It doesn't affect primaries. [1:37:54] So the only thing I can even think [1:37:56] of that would raise a lurking problem [1:37:59] is you wouldn't want the states, if this court decides [1:38:01] in our favor, you wouldn't want a state absentee ballot that's [1:38:04] misleading about the receipt deadline. [1:38:07] But those deadlines, those ballots [1:38:08] have to go out 45 days before the general election. [1:38:11] So what's that? [1:38:13] Like mid-September or something? [1:38:14] So there's plenty of time. [1:38:15] I don't think there's a Purcell problem. [1:38:16] Thank you. [1:38:17] Thank you. [1:38:18] Mrs. Barrett? [1:38:18] So I'm trying to figure out how to think about the history. [1:38:22] And you said a moment ago that what [1:38:23] we have is the original public meaning of Election Day [1:38:26] at the time in the late 19th century in 1917, et cetera, [1:38:30] was ballot receipt. [1:38:32] And you invoke the various state laws that required receipt [1:38:37] by Election Day. [1:38:39] But we don't have, to my knowledge, [1:38:40] so this is what I want you to correct me if I'm wrong, [1:38:44] a rich history of original public meaning in the way [1:38:46] that we often think of it. [1:38:48] Regardless of whether it's saying or expressing views [1:38:51] that yes, this is what it means to elect. [1:38:54] This is what Election Day means, stripped down to its essence, [1:38:58] it means the taking of the ballot and to official custody. [1:39:01] What we have is state practices. [1:39:04] I think there are a lot of really good policy reasons [1:39:06] to require and we've talked about some of those [1:39:08] this morning. [1:39:09] Lots of good policy reasons to require all the ballots [1:39:11] to be in by Election Day. [1:39:14] Do we have evidence either of people saying, link, this is what we understand, [1:39:18] require as opposed to treatises that are summarizing some of the cases? [1:39:22] Is there any reason to think that these laws were adopted because of a concern about preemption [1:39:28] by federal law as opposed to just, this is a really good policy, this is how elections [1:39:34] should run? [1:39:35] We're in the realm of congressional actions under the election clause and the electors [1:39:41] clause. [1:39:42] Everything they're doing is preemptive. [1:39:44] That's particularly obvious in the context of trying to get a uniform national election [1:39:51] day for the general election. [1:39:53] I think we're in the absolute epicenter of intertribal here because not only is it preemptive [1:39:59] by its very nature, but it's Congress trying to create uniformity across state lines. [1:40:08] Congress was appalled by what had happened with the staggered deadlines and disparate [1:40:13] deadlines in the states. [1:40:14] I think the preemption part of that is relatively straight forward. [1:40:18] On the history, this is where I just think the Civil War practice is so powerful because [1:40:25] my friend says, when they were first passed, the difference between casting and receiving [1:40:31] the ballot into official custody hadn't ripened. [1:40:34] But the Civil War ripened it, and the one thing every state, including Rhode Island [1:40:39] and Nevada, did is they said, it has to be in some kind of official custody. [1:40:43] But it is not. [1:40:44] It is not. [1:40:44] by Election Day. [1:40:45] And I agree with you that's striking, [1:40:47] but maybe I wasn't clear before. [1:40:50] I agree with you that that's striking, [1:40:52] but do we have any reason to think [1:40:54] that they did that because they thought, [1:40:56] well, it has to happen on Election Day [1:40:57] or by Election Day, [1:40:59] which is a deviation from what the text says, right? [1:41:01] But do we have any reason to think [1:41:03] that they did it because they thought they had to [1:41:05] as opposed to this is really good policy, [1:41:08] so we should do it this way? [1:41:09] No, I think we, I mean, to me, [1:41:11] can I connect the dots? [1:41:14] Precisely, no. [1:41:14] But they did it because they thought [1:41:16] that's what an election means, [1:41:18] and that's what an Election Day means. [1:41:20] They thought it would just be unthinkable. [1:41:22] It would no longer be an election or an Election Day. [1:41:25] It wouldn't be happening on Election Day [1:41:27] if it could take place, [1:41:28] if ballot receipt could take place some other time. [1:41:31] Isn't that true of early voting, too? [1:41:32] And I guess this goes back to Justice Kagan's question. [1:41:35] I mean, it seems to me that if you look [1:41:36] at the historical practice, [1:41:37] what an election meant was showing up in person [1:41:40] and casting your vote, [1:41:41] and being qualified as the voter on that same day. [1:41:45] And then there were deviations for war, essentially. [1:41:48] But why would absentee voting [1:41:50] in a widespread way by civilians, [1:41:52] or early voting, [1:41:54] why is that permissible? [1:41:55] Because if we're just going to say [1:41:57] that historically it needs to look like it always looked, [1:42:00] how come those features fall out? [1:42:02] I would say they probably fall out [1:42:04] because nobody thinks they're essential, [1:42:06] which is to say, you know, [1:42:08] if a state wanted to have, like, early voting, [1:42:10] but, like, no voting on election, [1:42:11] maybe that would be a hard case. [1:42:13] But, you know, those, I think, have been understood, [1:42:15] and there's a different history for those, [1:42:16] because if a state wants to say, [1:42:18] you can come in and you can mark your ballot [1:42:20] and put it into official custody a week early, [1:42:23] that doesn't sort of vitiate the whole idea of an election day. [1:42:28] Whereas if you can still have ballots being received [1:42:31] after election day, [1:42:33] I think that vitiates the whole notion of election day. [1:42:36] And if you're interested in Professor Morley [1:42:38] or Justice Kavanaugh's tiebreakers, [1:42:40] there's not that much of a difference. [1:42:41] There's not that much of a difference. [1:42:41] There's not that much of a difference. [1:42:41] There's not the same concerns about fraud, [1:42:43] about the losers not being able to accept the outcomes [1:42:46] when it comes to early voting. [1:42:48] But there's a distinct problem with voting, [1:42:51] with ballots that come in, and particularly if they're going [1:42:54] to tip an election, and as Justice Gorsuch indicated, [1:42:57] like, maybe it's happened, maybe it hasn't, but it will. [1:43:00] And at that point, there's just no way the loser is going, [1:43:04] whoever it is, is going to accept that outcome, [1:43:07] and the supporters aren't going to accept the outcome. [1:43:09] And so that's something that I just don't think is going [1:43:10] to happen. [1:43:11] And so that's something that I just don't think is implicated [1:43:11] by early voting. [1:43:12] Yeah. Thank you. [1:43:14] Justice Jackson? [1:43:14] Except people accepted the possibility of that outcome [1:43:17] for 100 plus years now, because this idea [1:43:20] of the votes being cast by election day and counted [1:43:27] after election day has been around, right? [1:43:30] I mean, it's not like we're talking about a brand new thing [1:43:34] from Mississippi from the standpoint [1:43:36] of no one ever had a post-election day ballot [1:43:39] deadline before. [1:43:40] And so I guess I'm just concerned [1:43:43] about the various conclusions that you would have us draw [1:43:46] from these historical practices, because it seems to me [1:43:49] that we have a very long history of states having a variety [1:43:54] of different ballot receipt deadlines [1:43:56] to include after election day. [1:43:59] So kind of three points about that. [1:44:01] I mean, one is I don't think it's true [1:44:04] that there was this 100-year sort of pattern, [1:44:06] and nobody raised an objection. [1:44:08] I think the Maddox case in 1940, [1:44:10] 1944 is a powerful example that the idea [1:44:13] that election day means election day is not something [1:44:15] that only occurred to lawyers in the post-COVID world. [1:44:19] The second thing I would say is as a practical matter, you know, [1:44:22] if one or two states at one time [1:44:24] in the 1920s had a law that deviated, [1:44:27] maybe that's not something that really makes [1:44:30] that big a difference. [1:44:31] But in a world where some states essentially have all [1:44:34] of the voting be absentee, lots of states have gone [1:44:37] to no-excuse absentee voting, it may be true, [1:44:39] but it's not something that's going to change. [1:44:39] I think the question is, you know, [1:44:40] if you're going to have a lot of absentee voting, [1:44:40] you're going to have to have a lot of absentee voting. [1:44:40] You're going to have to have a lot of absentee voting. [1:44:40] And it may be that a lurking problem has just become much [1:44:43] more obvious because of the magnitude of what's going [1:44:46] on in the present day. [1:44:47] But I guess I don't understand why that isn't, [1:44:48] the variety that you're describing isn't a strike [1:44:52] against your view that Congress has precluded this. [1:44:56] I mean, others of my colleagues have looked at or talked [1:45:00] about Congress legislating in this area. [1:45:03] They are obviously aware that there are states [1:45:05] that are doing this, and they have not spoken to it. [1:45:08] They have not specifically talked about it. [1:45:10] They have not specifically precluded it. [1:45:11] Now, you say that maybe that's because they assumed [1:45:14] that Election Day in the federal statutes that we're examining [1:45:18] from 100 years ago does the work. [1:45:20] But Congress is today considering an election-related [1:45:24] statute that would specifically prohibit this, [1:45:29] which means that Congress probably didn't understand its [1:45:32] existing legislation to do this. [1:45:34] I mean, I haven't studied the current legislation. [1:45:36] I think it probably does quite a bit more than this [1:45:39] and probably affects the current legislation. [1:45:39] It affects other elections, like primary elections. [1:45:42] I don't know for sure, though. [1:45:43] I haven't studied it. [1:45:43] But it does address this. [1:45:45] It specifically addresses, and we're talking [1:45:48] about the Make Elections Great Again Act, [1:45:51] specifically addresses the idea [1:45:55] of preempting state post-Election Day ballot deadlines. [1:46:00] And so if that's true, then it seems [1:46:02] as though Congress doesn't believe [1:46:04] that its current legislation has done this work. [1:46:07] Well, Congress probably doesn't know how this court is going [1:46:09] to decide this case. [1:46:10] So it probably can legislate against that veil of ignorance [1:46:13] one way or the other. [1:46:14] Right. [1:46:14] The worry is that you want this court to decide the case [1:46:16] rather than have Congress do it. [1:46:18] No. [1:46:18] And that's it. [1:46:19] I mean, two things I think are important. [1:46:21] However this court decides this case, [1:46:23] Congress has the power to revisit it. [1:46:25] That's, I think, common ground among the parties. [1:46:27] The second thing that's common ground among the parties [1:46:30] is that the federal Election Day statutes preempt something. [1:46:34] And so the only question is, what do they preempt? [1:46:37] Do they just preempt casting ballots? [1:46:38] No. [1:46:38] No. [1:46:38] No. [1:46:38] No. [1:46:39] No. [1:46:39] No. [1:46:39] No. [1:46:39] No. [1:46:39] No. [1:46:39] No. [1:46:40] No. [1:46:40] No. [1:46:40] No. [1:46:41] They preempt something. [1:46:42] They preempt. [1:46:42] It's just like spending money at odds and giving it [1:46:47] to the mail service as my friends suggest which [1:46:50] as Justice Gorsuch elucidated leads [1:46:53] to a huge slippery slope problem. [1:46:55] Or does it require both submitting and receipt [1:46:58] into official custody. [1:46:59] Everybody agrees to preempt something. [1:47:01] How do you respond to the notion [1:47:03] that when we look as the Society for Rule of Law [1:47:07] Institute suggests that we do, at historical practices [1:47:09] 1787 adopting a resolution establishing that quote the day fixed for the [1:47:15] election of the president in quote that that's the day on which the election [1:47:20] electors will vote and transmit their votes and that the president of the [1:47:25] Senate would receive their votes at a later date so this concept of casting [1:47:29] one's vote versus the receipt of the vote was very early on distinguished [1:47:34] yeah but I actually think that example works in our favor because what's going [1:47:38] on there is there are essentially two separate sort of elections if you will [1:47:42] or processes that are being adjudicated or overseen by different sovereigns so [1:47:48] what happens first is the states address the appointment of the electors in that [1:47:53] state and then later that has to be received and certified in the Senate [1:47:57] because then in the Senate they're going to figure out who won the national [1:48:00] election yes I appreciate that but I guess I'm just talking about this notion [1:48:04] that receipt and casting have always been [1:48:08] completely intertwined such that it would be inconceivable for someone to [1:48:13] think that the election day is the date in which the votes are cast versus the [1:48:20] day in which they're received by elections officials so I don't dispute [1:48:25] that if you have two really separate elections that you can then have you [1:48:28] having bifurcated the elections you can bifurcate the idea of casting and [1:48:33] receiving I mean you know like obviously but the Congress could have had a vote on that. [1:48:38] You could have had them on both the same day if that's what an election is. I mean your argument is rooted in this notion that as a common sense matter as a general matter if we're going to have an election day that's the day when everything is supposed to happen and this demonstrates that whether you call it two elections or not the casting of the votes can happen temporally separately from the receiving of the votes for the purpose of saying who won the election that's that's I think pretty clear in the historical context. [1:49:08] So it seems odd to me that we are to assume that when Congress set an election day it necessarily precluded the states from saying in our state we're going to consider election day to be the date of casting the votes and that we will as Mississippi has done continue to receive them up to a certain period afterwards. [1:49:30] So I still think you're alighting with all due respect you're alighting that they're kind of two separate elections there and in all the states when they elected [1:49:38] the electors for the president election they cast the ballots and receive the ballots instantaneously in that state. [1:49:45] Then there's a separate process for getting the results from the states to the national election and figuring out how it was all processed. [1:49:53] I don't think in 1792 that could have happened instantaneously. I think it took a while to get from Georgia to the seat of government in order for that to happen and so Congress understandably provided an interval there. [1:50:06] But I think for the election day. [1:50:08] I think it took a while. [1:50:10] So that's why I think it's important to think about the process of voting by ballot. [1:50:12] And I think the question of the electors in the states the casting and the receipt would have been simultaneously that might well have been doing it by putting beans in a bowl back in 1792. [1:50:15] But I think as the parties agree by about 1845 certainly by 1872 the process of voting by ballot had been well established and those were cast and received instantaneously. [1:50:27] Thank you. [1:50:28] Thank you counsel. [1:50:29] General Sauer. [1:50:35] Mr. Chief Justice and may it please the Congress. [1:50:36] I'm sorry. [1:50:37] I'm sorry. [1:50:38] I'm sorry. [1:50:40] I'm sorry. [1:50:41] Your honor. [1:50:42] I'm sorry. [1:50:43] I'm sorry. [1:50:44] As the argument so far reflects Mississippi's theory of election is so general and permissive that it would authorize statutes that Congress could not possibly have approved in the 19th century. [1:50:49] Defining election as merely private choice alone would authorize statutes where the voters mark their ballots and give them to a private party such as a ballot harvester or a party operative [1:50:58] or even hand them in three weeks later and just say or attest that they made the decision on election day. [1:51:05] Official receipt is at the definitional heart of election. [1:51:07] of election. Every source from the 1840s onward that addresses the specific question treats [1:51:14] official receipt as essential to an election. Mississippi cites a few definitions that are too [1:51:19] general to address the question, but they cite no authorities holding that a vote can be perfected [1:51:23] by anything other than official receipt. I welcome the court's questions. General Stauer, [1:51:29] what effect would your approach have on early voting? We agree with both sides that early [1:51:36] voting is still acceptable, and we agree in particular that Mr. Clement said that early [1:51:40] voting has two things in favor of it, a distinct historical pedigree that really starts, I think, [1:51:44] as he emphasized there in those Civil War practices that were before the 1872 Congress, [1:51:49] and also as all the courts of appeals who addressed this, the three cases that addressed this [1:51:54] around just after 2000, after Foster, all concluded that that is what this court was referring to and [1:52:01] talked about consummation in footnote four. The court left open the possibility that it does have [1:52:05] this better historical pedigree. I think that's a good point. I think that's a good point. I think [1:52:06] it's a good point. I think that's a good point, that there can be a process for ballots [1:52:10] being received earlier, but that ballot box has to close on election day. [1:52:16] I'm not sure I understand exactly how that answer is responsive to the point that [1:52:23] if the election day is the voting and taking, that has to be that day. So maybe I just missed [1:52:29] it, but it seems to me maybe you're not saying anything other than, well, that's different. [1:52:34] It's a challenging question, but I point the challenge out to the fact that I think it's [1:52:36] is even greater for Mississippi. [1:52:38] I mean, Judge Kleinfeld does wrestle with this in Keesling. [1:52:40] He thinks it's a really tough question, [1:52:41] and he does come out, as every court does, [1:52:44] in favor of early voting. [1:52:45] It's a much tougher problem conceptually for Mississippi, [1:52:47] because Mississippi's definition is it's all private action. [1:52:50] The private action occurs when you mark that ballot, [1:52:53] when you put it in the mailbox or give it to a common carrier. [1:52:55] And of course, that obviously extends over many days. [1:52:57] So they can't handle the word day in the election statute. [1:53:00] We think that conceptualizing it as the courts of appeals cases [1:53:04] do as there's a process. [1:53:06] That process is consummated. [1:53:07] It's finalized. [1:53:08] It's perfected is the term they use [1:53:10] in the congressional record in 1844. [1:53:12] It's perfected on election day. [1:53:13] The ballot box closes. [1:53:15] And we think that's the best way to address early voting. [1:53:17] But General, if I might, I think the reason it's a tougher [1:53:20] question for you is because you started off [1:53:24] by phrasing the question this way. [1:53:26] You said those election rules are not [1:53:29] ones Congress could possibly have conceived of or approved. [1:53:34] That's not their question. [1:53:35] That's your question, that you're [1:53:37] saying we have to go back to the mid-19th century and say, [1:53:42] could Congress have possibly conceived [1:53:44] of this kind of rule? [1:53:46] And Congress couldn't have conceived [1:53:48] of the kind of early voting we have now. [1:53:50] It couldn't have conceived of 1,000 other ways in which we [1:53:54] administer elections now. [1:53:56] And so I think it really is a problem for you, [1:54:00] as to how you draw this line and say, well, this [1:54:03] is across the line. [1:54:05] But all these other things that we do differently now [1:54:08] from the way we used to do them in the 19th century, [1:54:12] those don't worry about. [1:54:14] I disagree with that. [1:54:15] And the reason I disagree with it is the Civil War practice [1:54:18] is proxy voting has this aspect of the private choice [1:54:21] happening earlier. [1:54:22] So early voting is already in the forefront of the mind. [1:54:24] Forms of early voting, at least, are already [1:54:26] in the forefront of the mind of Congress. [1:54:27] If you said to Congress, do you think that the Civil War [1:54:30] provides a precedent for early voting generally [1:54:32] among the civilian population? [1:54:33] Yes. [1:54:33] I think they would have laughed at you. [1:54:36] They saw early voting as like something [1:54:39] you did for soldiers in the field, not as like, oh, [1:54:42] this is going to be great precedent for any old citizen [1:54:46] getting her ballot three weeks ahead of time [1:54:49] and mailing it in. [1:54:51] I strongly agree with that in a sense [1:54:53] that, repeating what Mr. Clement said, [1:54:55] which is that you have a practice that [1:54:57] involves early voting. [1:54:59] But you also have states taking these Herculean, [1:55:01] extraordinary efforts to make sure [1:55:03] that the ballot boxes, the votes are received [1:55:05] and the ballot box closes on election day, [1:55:07] whether it's soldiers going in the front [1:55:09] and giving their votes over to day jury election officials who [1:55:13] are actually commanding officers, [1:55:14] or whether or not it's submitting them in that proxy [1:55:16] voting practice. [1:55:17] What happens in proxy voting is you see. [1:55:19] I guess you're sort of not really quite grasping, [1:55:21] maybe it's my fault, like what my question is. [1:55:24] It's like, why this practice but no other practices? [1:55:28] And for example, Mr. Clement was asked about verification [1:55:32] practices. [1:55:33] Do those too have to happen on election day? [1:55:36] And I think Mr. Clement, credibly enough, [1:55:39] said, not my case. [1:55:42] Kind of maybe they do. [1:55:43] I mean, once we go down this road, [1:55:45] once we say that these statutes, which don't say anything, [1:55:49] actually have some significant preemptive effect, [1:55:53] where are we going to end up? [1:55:56] I think my answer to that is that the ordinary indicators [1:55:59] of original public meaning from the 19th century do grapple. [1:56:03] Repeatedly, surprisingly repeatedly, [1:56:05] grapple with the question whether or not [1:56:07] receipt is essential to election. [1:56:09] So Leroy gets fully describes it as the essential thing [1:56:13] in election is casting in receipts. [1:56:15] We've cited 11 cases, three treatises, five dictionaries. [1:56:19] Whenever they get to the point of considering [1:56:21] whether casting and receipt are required, [1:56:23] they unanimously, there's this impressive consensus, [1:56:26] they all say casting and receipt. [1:56:29] Mississippi has no 19th century source, no source at any time [1:56:32] prior to 1980. [1:56:33] They say, well, if you're casting and you're not [1:56:35] going to get a receipt, you're going to get a receipt. [1:56:37] And so they're basically saying, well, [1:56:38] we're going to have to make a decision. [1:56:40] So there's a very interesting consensus in 1918 [1:56:43] that says a vote is cast by anything [1:56:46] less than official receipt. [1:56:47] So there actually is a surprising consensus [1:56:49] in the 19th century authorities that cuts in our direction. [1:56:52] And that's reinforced by the efforts [1:56:55] the states took during the Civil War [1:56:57] to ensure that receipt occurred on election day. [1:56:59] So you put those two together and you come to, I think, [1:57:01] a very powerful place. [1:57:02] But really, you see the 19th century authorities, [1:57:05] they have to pair to the definitional bone, really. [1:57:07] For example, in the Steinware case, [1:57:10] a voter comes into the polls. [1:57:11] And he's got three votes folded together. [1:57:13] And he gets qualified. [1:57:14] And he tries to put them in the ballot box. [1:57:15] And they stop him right there. [1:57:17] And they say, whoa, that looks a little thick. [1:57:18] And they open it up. [1:57:19] And there's three. [1:57:19] And he's indicted because he's trying to stuff the ballot box [1:57:21] right there. [1:57:22] And he says, I never voted because it never [1:57:24] went in the ballot box. [1:57:25] And the courts grapple with that. [1:57:26] They take that argument very seriously. [1:57:28] Where they come down is official receipt, [1:57:30] when you've made the offer to vote and you give it [1:57:32] to the election official. [1:57:32] That constitutes voting. [1:57:34] So you have the early 19th century sources [1:57:37] looking at stuff that's very, very similar in a sense [1:57:40] of detail of the issue presented here. [1:57:42] And every single one of them comes up with casting and receipt [1:57:45] are required for voting. [1:57:46] Yes, but since then, we have many states [1:57:50] that have departed from that, to include Mississippi. [1:57:53] And since we're talking about preemption and Congress's [1:57:58] ability to make this determination, [1:58:01] it just seems very, very difficult. [1:58:02] And I think it's very odd that in the period of time [1:58:06] since when these statutes were passed and today, [1:58:10] we now have pretty common practice among many states [1:58:14] to allow for absentee voting in this way, early voting, [1:58:17] all these other things. [1:58:18] But in particular, post-election day ballot receipt deadlines. [1:58:24] And Congress has not indicated, at least thus far, [1:58:29] that it intended ever to preempt this, [1:58:32] that it intended not to have the states [1:58:34] make this determination. [1:58:36] As far as I know, this kind of challenge [1:58:39] hasn't even been brought. [1:58:41] This has just been accepted. [1:58:43] So how is it that we focus in, home in, [1:58:46] right in the 19th century, and that's the relevant practice [1:58:51] that you want us to consider, and not [1:58:54] the more recent practices, the practices of everybody [1:58:56] understanding what election day means [1:58:58] to include this kind of thing? [1:59:01] Mississippi admits that. [1:59:02] Every single one of those examples [1:59:04] occurs after the relevant period when all these statutes [1:59:07] are enacted. [1:59:08] But I guess I'm asking you, why is that the relevant period? [1:59:11] I mean, we have lots of statutory interpretation [1:59:14] scenarios in which Congress passes statutes. [1:59:18] And I think it's rare that we interpret those statutes [1:59:23] relative to the practices of the people who were affected [1:59:27] by them at the time. [1:59:28] I thought we'd normally do things like textualism. [1:59:31] We look at the statute. [1:59:32] And some of us think about the legislative history [1:59:36] and what Congress's intent was when [1:59:38] we're interpreting the statute. [1:59:39] I don't recall, and maybe we have, [1:59:41] but I'm just curious about this really heavy reliance [1:59:46] on the 19th century understanding of the word [1:59:49] election day, especially when we have a more recent understanding [1:59:53] that has been implemented and Congress hasn't [1:59:55] said anything about it. [1:59:58] I would say the 19th century evidence of meeting [2:00:01] is the best evidence. [2:00:02] And I think that's the reason why Congress is so [2:00:04] concerned about the fact that the statutes are not [2:00:06] in the original public meaning of the statutes [2:00:08] at the time they were adopted, 1845, 1842. [2:00:10] And you're saying that governs. [2:00:12] We have to interpret election day, notwithstanding [2:00:14] that Congress may have wanted states to experiment, [2:00:16] that states have experimented and done other things. [2:00:18] We are bound, you say, by exactly what election day [2:00:20] people thought it meant at the time these statutes [2:00:22] were enacted. [2:00:24] By its original public meaning. [2:00:26] And of course, Congress was very concerned when it passed [2:00:28] these statutes, 1845, 1842, 1845, 1845, 1845, 1845, 1845, [2:00:30] 1845, 1872, about the exact thing that Mississippi's, [2:00:32] almost the exact thing that Mississippi would allow, [2:00:34] which is staggered ballot receipt deadlines. [2:00:36] Thank you, Counsel. [2:00:38] Justice Thomas. [2:00:40] Justice Alito. [2:00:42] Justice Sotomayor. [2:00:44] Tell me what the act is that you think has to be done [2:00:46] by election day by the official. [2:00:48] Received or accepted? [2:00:50] Received. [2:00:52] All ballots have to be received and the ballot box [2:00:54] has to close on election day. [2:00:56] The ballot box has to be closed on election day. [2:00:58] The ballot box has to be closed on election day. [2:01:00] The ballot box has to be closed. [2:01:02] Yeah, the proverbial ballot box. [2:01:04] So what do we do, and I know you did this, [2:01:06] and I am a little upset, not a little, a lot upset, [2:01:08] by many of the statements in your brief, [2:01:10] quoting historical sources out of context. [2:01:14] But the Payne's treatise on the law of elections [2:01:18] to public officers, you claim, had a traditional rule, [2:01:22] was that the legal votes duly offered at the polls, [2:01:24] but not actually deposited in the ballot box, [2:01:28] cannot be counted. [2:01:30] I look to that treatise and it says in some of the states [2:01:34] that is the rule, but that in others, [2:01:38] and also for the U.S. House of Representatives, [2:01:42] the rule was the opposite. [2:01:44] As Payne wrote, it was in 1888 an established rule [2:01:48] of the House of Representatives of the United States [2:01:50] that a vote duly offered and unlawfully rejected, [2:01:56] so it wasn't accepted, at the polls, [2:01:58] will be counted as a rule. [2:02:00] It was only counted in a contest, [2:02:02] even if not accepted by officials on election day. [2:02:06] And we have another source you cite, [2:02:08] the American and English and Psychopedia of Law, [2:02:12] you selectively quote from that snippet, [2:02:16] that the quote, active voting was not complete [2:02:18] until the ballot was deposited in the box. [2:02:22] But it made very clear that that was only the rule [2:02:26] in Alabama, while noting that other states [2:02:30] allowed votes to be counted, [2:02:32] even if the officer may neglect to deposit the ballot [2:02:36] in the box until after the close of polls. [2:02:40] So it seems as if your rule is already historically destroyed [2:02:48] at the time of these examples that you quote to us. [2:02:54] I respectfully disagree and I stand by exactly [2:02:56] how we characterize both those sources [2:02:58] and all the historical sources in our brief. [2:03:00] I think we refer to this in the very next sentence [2:03:02] in our brief, the Payne Treatise says [2:03:04] the traditional rule is it's got to actually be deposited. [2:03:06] But then it notes later in the 19th century [2:03:08] some authority says, well, you know, [2:03:10] if they challenge your qualifications [2:03:12] and they were wrong, as long as they received it. [2:03:14] Either way, it's official receipt is what matters. [2:03:16] The state has it in its custody. [2:03:18] Now you're changing the definition. [2:03:20] Well, we've said receipt is the word that we've used. [2:03:22] We've used that consistently. [2:03:24] And that Payne Treatise points out that either way, [2:03:26] whether it's got to actually be in the ballot [2:03:28] or not, it's not. [2:03:30] Whether it's in the ballot box or officially received, [2:03:32] official receipt is essential to an election. [2:03:34] And so do all three of the treaties, [2:03:36] all five of the legal dictionaries, [2:03:38] including the one you referred to. [2:03:40] Justice Kagan, Justice Gorsuch, [2:03:42] Justice Kavanaugh, Justice Barrett, [2:03:44] Justice Jackson. [2:03:46] Thank you, counsel. [2:03:48] Thank you. [2:03:50] Rebuttal, Mr. Stewart. [2:03:52] Thank you, Mr. Chief Justice. [2:03:54] I'd like to do my best to make three points. [2:03:56] First, there was a concession by Mr. Clement [2:03:58] that I was surprised about because it seemed to be different from what he said in his brief. [2:04:00] There was no objection in doing what the U.S. Solicitor General proposes on UCAVA. [2:04:04] I just want to briefly make clear, as we've said in our briefs, [2:04:06] that if this Court agrees with the Solicitor General on UCAVA, [2:04:10] that means vacator would be required because the Fifth Circuit [2:04:12] did not allow state laws allowing UCAVA votes to arrive after Election Day. [2:04:16] Second, I want to try to tie together some points that go back to Justice Barrett's questions, [2:04:20] Justice Kagan's questions, [2:04:22] Justice Sotomayor's questions, [2:04:24] some other questions about 19th century history here. [2:04:26] My friend, Mr. Clement, emphasized, [2:04:28] the Solicitor General did as well, [2:04:30] he said, hey, those show that you needed ballot receipt. [2:04:32] I think the key point to recognize there [2:04:34] is that ballot receipt was not possible in the 19th century [2:04:38] without somebody showing up in person [2:04:40] and undergoing an on-the-spot qualifications check. [2:04:42] If you need ballot receipt, [2:04:44] you need those other things as well, [2:04:46] and that's quite critical to the plain meaning in this case. [2:04:48] I think the better view is that, [2:04:50] hey, when people were holding elections in person at the time, [2:04:54] naturally they were going to be receiving ballots on Election Day. [2:04:56] That doesn't mean that that was required [2:04:58] or baked into a law. [2:05:00] I think the better view is that, [2:05:02] if you're going to vote in an election, [2:05:04] any more than in-person voting [2:05:06] or on-the-spot qualification checks [2:05:08] by fellow voters is baked into an election. [2:05:10] I would add, Justice Sotomayor, [2:05:12] you mentioned some things, [2:05:14] pain, treatise, and otherwise. [2:05:16] I would also say, if you look at the Solicitor General's sources, [2:05:18] they emphasize not just voter choice, [2:05:20] but they also emphasize that at the time, [2:05:22] the method of making that choice [2:05:24] was in-person, on-the-spot qualification checks, [2:05:26] those kinds of things. [2:05:28] Those are not things you really see quoted or cited [2:05:30] in the country election codes. [2:05:32] I'd say that also this history explains [2:05:34] the Civil War receipt of absentee ballots. [2:05:36] Mr. Clement alluded to the idea [2:05:38] that states went to Herculean efforts [2:05:40] to receive ballots on Election Day. [2:05:42] That's not what they went to Herculean efforts to do. [2:05:44] They went to Herculean efforts to hold elections [2:05:46] effectively in person, because that is the method [2:05:48] of voting that people used at the time. [2:05:50] That's why field voting was so dominant. [2:05:52] And the other thing [2:05:54] that states were trying to do at the time [2:05:56] was to adhere to actual [2:05:58] or perceived in-person [2:06:00] in-district voting requirements. [2:06:02] So that's what they were doing. [2:06:04] They were holding elections where people would cast ballots [2:06:06] in person, which was the common, standard way. [2:06:08] And when that's happening, yes, [2:06:10] naturally, ballots are going to be received by Election Day. [2:06:12] That did not make it a ripe issue [2:06:14] or a settled issue. [2:06:16] It did not decouple ballot receipt [2:06:18] from ballot casting, but it did not [2:06:20] foreclose that either. [2:06:22] Last thing, I just want to refer to [2:06:24] your neighbor again, Justice Gorsuch. [2:06:26] I want to be clear, [2:06:28] we have not made the argument [2:06:30] for the neighbor to be allowed to cast ballots, [2:06:32] but I will say that I would emphasize [2:06:34] my friends do allow the neighbor to cast your ballot. [2:06:36] The neighbor just needs to be designated, [2:06:38] I think, as Mr. Clement put it, [2:06:40] cloaked with government authority. [2:06:42] It's quite something for a neighbor, a party boss, [2:06:44] some bad actor to be able to [2:06:46] become a ballot receiver [2:06:48] just because they're cloaked with state authority. [2:06:50] If that's allowed, then I don't see [2:06:52] why the historically recognized [2:06:54] for a hundred years method of casting a ballot [2:06:56] through the mail would not be equally legitimate, [2:06:58] especially when the federal government itself [2:07:00] has been fine with that method, [2:07:02] and Congress has been fine with that method [2:07:04] for United States tax returns, [2:07:06] which carry huge civil and criminal consequence, [2:07:08] also are very critical on deadlines. [2:07:10] I think the best way to resolve this case [2:07:12] is to come back to the text, [2:07:14] history, and precedent, [2:07:16] which we've said many times, [2:07:18] just does not decide the key issue. [2:07:20] This is ultimately a federalism case. [2:07:22] The question is whether, as I think Justice Jackson put it, [2:07:24] did Congress in 1845 [2:07:26] block states from adopting a practice [2:07:28] that no one had wide reason to consider [2:07:30] at the time. [2:07:32] Congress wasn't thinking about it. [2:07:34] It didn't decide that. [2:07:36] It didn't wall states off from doing that. [2:07:38] We ask the court to reverse. [2:07:40] Thank you. [2:07:42] Thank you, counsel. [2:07:44] The case is submitted. [2:07:46] The U.S. Senate gavels in today at 3 p.m. Eastern [2:07:48] to consider the nomination of Republican Senator Mark Quain Mullen [2:07:50] to be the next Homeland Security Secretary. [2:07:52] A confirmation vote has been scheduled [2:07:54] for 7 p.m. Eastern. [2:07:56] The U.S. Senate is now in session [2:07:58] with the U.S. Senate. [2:08:00] President Trump nominated [2:08:02] Senator Mullen on March 9th [2:08:04] after announcing his decision to [2:08:06] reassign DHS Secretary Kristi Noem [2:08:08] to serve in a special envoy role. [2:08:10] Watch live coverage of the Senate [2:08:12] on our companion network C-SPAN 2 [2:08:14] and all of our congressional coverage [2:08:16] on our free video app C-SPAN Now [2:08:18] and our website C-SPAN.com.