LIVE: LANDMARK SCOTUS Oral Argument on What Constitution means by “Election Day”

Federal law only requires voters to *cast* their ballots by Election Day, meaning they mark and submit them. The actual *receipt* and *counting* can occur after, as states have historically allowed for over a century. Mississippi's 5-day post-Election Day receipt window for mail-in ballots is a valid exercise of state power, not preempted by federal law.

Stewart argues that the 'plain meaning of an election' is the voter's final choice, made when the ballot is marked and submitted. He states that if the 1845 definition were strictly applied, it 'dooms absentee voting, modern methods of voting, the secret ballot, and more,' as 30 states currently have post-Election Day receipt laws.

An 'election' is a process involving both voter action (casting) and official action (receipt and counting), which must conclude on Election Day. Historical practice, including Civil War proxy voting, shows states made 'herculean efforts' to ensure ballots were *received* by Election Day. Allowing ballots to 'trickle in days or weeks after' undermines uniform national election day and public confidence.

Clement emphasizes that the original public meaning of 'election' included both offering to vote and the receipt of that vote by election officials. He cites Civil War proxy voting where states required ballots to be received by Election Day despite logistical challenges. He also highlights the common sense perception that an election is not 'over' if ballots are still arriving.

Supports the RNC, asserting that 'official receipt is at the definitional heart of election.' Historical sources from the 1840s onward treat official receipt as essential. Mississippi's broad definition of 'private choice alone' would permit unacceptable practices like ballot harvesting or late attestations without official receipt.

Sauer states that 'every source from the 1840s onward that addresses the specific question treats official receipt as essential to an election.' He claims Mississippi's theory is 'so general and permissive that it would authorize statutes that Congress could not possibly have approved in the 19th century.'

Justices Thomas, Barrett, and Gorsuch pressed Mississippi's counsel on the 'finality' of a vote once cast, especially if a ballot could be recalled from the postal service. This hypothetical scenario challenged the idea that a vote is 'final' before official receipt, highlighting potential vulnerabilities in the 'cast by' argument.

Justice Thomas questions when a choice is 'final,' asking if handing a ballot to a neighbor constitutes a final choice (21:36). Justice Barrett asks if a state could allow a neighbor to collect votes (24:01). Justice Gorsuch presents a hypothetical where a candidate scandal leads voters to recall ballots from common carriers, questioning if the election still 'happened on election day' if the outcome changes (38:35).

Justices Sotomayor, Kagan, and Jackson questioned the reliance on 19th-century historical practices, distinguishing it from the *Bruin* Second Amendment methodology. They emphasized that election administration has been dynamic and states have broad power unless Congress explicitly preempts it, which they argue the federal election day statutes do not.

Justice Sotomayor argues that the Constitution vests election issues in states 'unless superseded by Congress,' implying that absent explicit federal law, states decide (50:42). Justice Jackson questions the application of *Bruin*'s history and tradition test, noting that election administration has been 'very much changing throughout the course of our country' (1:11:04). Justice Kagan points out that Congress, in 2022, acknowledged a 'period of voting,' suggesting a modern understanding beyond a single day (1:42:46).

Justices explored how a strict 'received by Election Day' rule would reconcile with widespread early voting practices. The RNC argued early voting has a 'distinct history,' but late receipt undermines the concept of a uniform national election day and fosters distrust.

Justice Thomas asks how early voting would be treated under a strict 'received by Election Day' definition (1:17:07). Paul Clement argues that early voting is permissible due to its 'distinct history' and the concept of 'consummation' of the election on Election Day (1:17:40). Justice Kavanaugh raises concerns about 'destabilizing election results' and the 'appearance of fraud' if outcomes flip due to late-arriving ballots (1:00:10).