Justices allow late-arriving mail-in ballots

In a surprise decision, Barrett and Roberts join majority, dealing a setback to GOP.

- DAVID G. SAVAGE

The Supreme Court on Monday dealt a surprise setback to the GOP and upheld state laws that allow for counting mail ballots that are postmarked by election day but arrive later.

The 5-4 decision in a Mississippi case rejects a Republican challenge to laws in California and 13 other mostly Democrat-led states that permit the counting of these late-arriving ballots.

Justice Amy Coney Barrett and Chief Justice John G. Roberts Jr. joined with the three liberals to form the majority.

The decision avoids an election-year change in the voting rules and may bolster Democrats in the fall election.

Barrett said the history of American elections shows that states and their voters have often followed different rules. Moreover, she said, Congress has let them do just that.

Since early in the 20th century, most have allowed absentee ballots from residents who are away on election day. “Today, roughly 30 states count at least some absentee ballots mailed by election day but received afterward,” she wrote.

Although Congress could have prohibited the counting of late-arriving ballots, it had not done so. That may be because states wanted to count ballots from members of the military stationed overseas even if they arrived late.

And more recently, states and their voters have turned to voting by mail.

In response to the COVID-19 pandemic, Mississippi changed its laws to accept mail ballots that were postmarked on time but arrived up to five days late.