Alito expresses skepticism about late voting, says ‘Election Day’ means one day
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Justice Samuel Alito emphasized the true meaning of the word “day” as the Supreme Court heard arguments Monday about whether states can legally accept late ballots marked on Election Day.
“We have a lot of two-word phrases, the last of which, the second is ‘day,’ Labor Day, Memorial Day, George Washington’s birthday, Independence Day, birthday and Election Day, and they’re all specific days,” said Alito, who was nominated by former President George W. Bush.
Alito added, “If we start with that, if there’s nothing else I can look at other than the phrase ‘Election Day,’ I think this is the day that everything will happen, or almost everything.”
Justice’s comments come after the Republican National Committee sued over a Mississippi law that allows mail-in ballots cast on Election Day to be counted if they are received five days after that day. The U.S. Court of Appeals for the 5th Circuit sided with the RNC in the 2024 case, leading Mississippi to ask the Supreme Court to review it.
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US Supreme Court Justice Samuel Alito on Oct. 7, 2022, Washington, DC (Alex Wong/Getty Images)
Alito was among several justices Monday who appeared to question Mississippi’s law and intend to overturn it. A decision is expected this summer and could affect more than a dozen states that accept marked ballots after Election Day.
While some justices seem convinced that Election Day should be considered the one and last day of the election cycle, Chief Justice John Roberts, a George W. Bush appointee, and Justice Elena Kagan, an Obama appointee, expressed concern that if the interpretation of Election Day is upheld by the court, then early voting may also be affected.
“If ‘date’ includes a period after a certain election day, does it include a certain day before the election day?” Roberts asked Mississippi Solicitor General Scott Stewart. “Or does your mind need a different consideration?”
Former U.S. Solicitor General Paul Clement, a prominent conservative lawyer, argued in support of the RNC, saying the original definition of an election involved the “combined act” of casting a ballot and an election official receiving a ballot.
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The facade of the US Supreme Court building as seen in October 2024. (Valerie Plesch/photo alliance via Getty Images)
“They all agree that elections for government positions should end on the day of the election specified by Congress, and they all agree that you can’t have an election unless you get votes, and there should be a deadline for getting votes,” said Clement. “However, Mississippi insists that voting can be reduced days or even weeks after Election Day. That position is wrong as a matter of text, example, history and common sense.”
The case comes as President Donald Trump has made election security a priority. The RNC and several pro-choice groups have criticized the case, saying the Supreme Court should ban late ballots, except military ballots, because they sow distrust in the election.
“Today’s oral arguments in Watson v. RNC show clearly where the Supreme Court must come down: state laws that count votes received after Election Day violate federal law, subject elections to delays, invite fraud, and fuel public skepticism about the democratic process,” Jason Snead, executive director of the Honest Elections Project, said in a statement provided to Fox News Digital.
Allegheny County workers scan incoming and absentee ballots at the Allegheny County Election Division Elections in Pittsburgh, Thursday, Nov. 3, 2022. (AP Photo/Gene J. Puskar)
At least 14 say once Washington, DCcurrently count votes received after Election Day if they are marked on time.
A ruling in favor of the 5th Circuit could invalidate those terms and require ballots to be in the hands of election officials at the end of the ballot, a decision expected to affect the 2026 midterms. Critics say election officials may still be counting mail-in ballots in some states even if all ballots are received on Election Day because of the states’ tabulation procedures.
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Military and overseas votes, governed by the Equal Voting Act for Citizens and Overseas Citizens, will remain unaffected.
Since the 2024 midterm elections, four Republican-controlled states, Kansas, Ohio, Utah and North Dakota, have moved to seek admission on Election Day.
Bill Mears of Fox News contributed to this report.
