Election experts warn of broad consequences of mail-in ballot ruling

Although Indiana will not be affected by a possible Supreme Court ruling on counting mail-in ballots, experts warn that eligible voters across the country will not have their ballots counted if judges determine that late-arriving mail-in ballots cannot be counted.

Marjorie Hershey, professor emeritus of political science at Indiana University, said it’s “disturbing” to think that who can vote is being limited by new rules.

“I think it’s concerning when it comes to voting rights,” Hershey says. “The Supreme Court has been quite hostile to the idea of ​​extending the right to vote to everyone who is eligible, which is quite surprising given that if you have the right to vote, you should be able to do so.”

The Supreme Court agreed Monday to decide whether states can continue counting late-arriving ballots, which is a target of President Donald Trump.

The justices appealed from Mississippi after a three-judge panel appointed by the Republican president to the 5th U.S. Circuit Court of Appeals ruled last year that the state law allowing the counting of ballots arriving shortly after Election Day violated federal law.

Mississippi is one of 16 states and the District of Columbia that accepts mailed ballots received after Election Day as long as the ballots are postmarked by that date, according to the National Conference of State Legislatures.

Fourteen additional states allow the counting of late-arriving ballots from certain eligible voters, including U.S. military personnel overseas and their families, according to a filing from Democratic-led states that urged judges to overturn the appellate ruling.

The case will be litigated in late winter or early spring. A final decision will almost certainly be made in late June, early enough to govern the counting of ballots in the 2026 midterm congressional elections.

Mississippi Attorney General Lunn Fitch, a Republican, told the Supreme Court that the appeal ruling “will have destabilizing ramifications nationally” if it is left to stand.

“The stakes are high: Ballots cast before Election Day – but received after – can swing close races and change the course of the country,” Fitch wrote.

Trump claimed that late-arriving ballots and drawn-out electoral counts were undermining confidence in the election. In March, Trump signed an executive order on elections that aims to require votes to be “cast and received” before Election Day. The order was challenged in court.

The Republican National Committee and the Libertarian Party of Mississippi led the challenge to the Mississippi law. A federal judge rejected a similar challenge to Nevada’s law, but the decision has been appealed.

In the Mississippi case, Judge Andrew Oldham wrote for the appeals panel that Congress established a “singular” election day for members of Congress and presidential electors, “during which ballots must be both cast by electors and received by state officials.” Justices James Ho and Stuart Kyle Duncan joined Oldham’s opinion, striking down the Mississippi law.

The ruling overturned a ruling by U.S. District Judge Louis Guirola Jr., who had found there was no conflict between state and federal laws. “All that happens after Election Day is the delivery and counting of ballots cast on or before Election Day,” wrote Guirola, appointed by President George W. Bush, a Republican.

In Indiana, all mail-in ballots must be received by 6 p.m. on Election Day, said Julia Vaughn, executive director of Common Cause Indiana. Ballots that are not at an election office by 6 p.m. that day are not counted, she said.

But many states have a deadline that extends beyond Election Day, and “there are good reasons for that,” Vaughn said.

“As long as a ballot is cast before the election, it seems to me that it should be counted. Certainly in many states that give some voter grace and count ballots that come in after Election Day, that could have a huge impact,” Vaughn said.

Lake County Board of Elections and Registration Director Michelle Fajman said that since the case would not impact Indiana, she would like political leaders to overturn an Indiana law that disqualifies a ballot that is not dated.

“I think it’s a more important issue to address,” Fajman said. “This is a decision that will disenfranchise many more voters.”

Porter County Deputy Director of Elections and Registration Tara Graf said any state affected by the Supreme Court’s future decision will need to communicate any changes to voters.

“We’re just concerned about the state laws that affect us,” Graf said. “When it comes to whether it’s fair or effective, for us, we’re so used to it that it’s not alarming.”

Mail-in voting has been a method of voting since 1786, the nation’s first presidential election, Hershey said. Amid the COVID-19 pandemic, mail-in voting increased because voters didn’t want to wait in line with other people, she said.

Republican legislatures have worked to restrict mail voting because of unfounded claims of fraud, Hershey said.

“There’s not a lot of evidence that there’s the type of voter fraud in mail-in voting that Republican legislatures are claiming. Voter fraud was pretty common in the 1800s, but we’re not in the 1800s anymore, and it’s really pretty rare right now,” Hershey said.

Voting by mail “is not a random process,” Hershey said, but rather a voting method with many steps to confirm a voter’s identity and eligibility.

“Being able to vote by mail and vote fraudulently is really difficult to do,” Hershey said.

Mail-in voting “has come under scrutiny for no real reason,” Vaughn said. Republicans began attacking mail-in voting after its use increased during the pandemic and Trump’s defeat in the 2020 election, she said.

Although mail-in voting is a secure method of voting, the Indiana Legislature has worked to restrict access to mail-in voting, she said.

“We are already one of the most restrictive states in terms of mail-in voting. It’s hard to imagine how Indiana could become even more restrictive,” Vaughn said.

Vaughn said she doesn’t understand the Republican-led charge of limiting mail-in voting because Republican voters use that method of voting.

“That’s one thing Republicans need to keep in mind: They might cut off their noses in revenge. Making voting less convenient hurts all voters. Mail-in voting is very popular. It’s very secure,” Vaughn said. “We should expand, not restrict.”

The Supreme Court has a conservative majority, half of which were appointed by Trump, who “has been very careful to do what he wants,” Hershey said.

If the Supreme Court rules in favor of the Trump administration, it will be a “significant” step toward rolling back voting rights, Hershey said. Changing a Supreme Court decision would require a constitutional change, so the ruling would have a lasting impact, she said.

“I wouldn’t say I’m optimistic that this court will rule in a way that is favorable to the voters,” Vaughn said. “Their decision will have a lasting impact. »

The Associated Press contributed.

akukulka@post-trib.com