This Major Ballot Error Shows the Supreme Court Made a Big Mistake
Repeated printing errors are a local example of the election integrity breakdown dissenting conservative justices warn about.
On June 29, the same day the Supreme Court gave states the right to count mail-in ballots past Election Day, news broke that Green Bay, Wisconsin had mailed duplicate ballots to voters—for the second time this year. This reaffirms the dangers four conservative justices warned about in their dissent.
In April, a labeling error sent duplicate absentee ballots to 152 voters. Then on June 29, the city confirmed that voters in eight wards received a second ballot ahead of the August 11 primary. City Clerk Celestine Jeffreys again blamed a printing error.
It would be easy to write this off as a local administrative hiccup (it very well could be). But the error offers a concrete illustration of a much bigger problem the Supreme Court just magnified for the entire country.
The Court ruled on June 29 in Watson v. Republican National Committee that federal law does not require states to finish counting absentee ballots by Election Day. If a ballot is postmarked on time, a state can legally accept and count it for days afterward.
The Republican National Committee, the Republican Party of Mississippi, and the Libertarian Party of Mississippi brought the case against the Mississippi secretary of state. The Fifth Circuit Court of Appeals sided with the plaintiffs. The Court overturned that decision in a 5–4 vote, with conservative Justices John Roberts and Amy Coney Barrett joining the liberal justices.
Mississippi is one of 30 states that allow ballots to be counted past Election Day—in Mississippi's case, for five additional days. The counting period is even longer in other states, and COVID-19 set a precedent to extend it during state emergencies.
In the dissent, Justice Samuel Alito wrote that "for more than 100 years, federal law has designated the Tuesday next after the first Monday in November" as the day for federal elections. He correctly notes that Election Day is "a specified date, not a span of multiple days," adding that an election isn't really "held" on a single day unless the collection of ballots is finished on that day. If officials are still receiving ballots a week later, the outcome won't be decided on Election Day as federal law states that it should.
Alito traced this principle back through more than a century of American election law, noting that from the Civil War through most of the 20th century, states overwhelmingly required ballots in hand by the time polls closed, even when that meant scrambling to get soldiers' votes home from the battlefield in time.
Real World Damage to Election Integrity
Green Bay shows why the distinction between casting a ballot and an actual Election Day deadline is not just academic. A printing mistake creates a real, documented opportunity for ballots to be duplicated or mishandled. Every additional day ballots can arrive late is another opportunity for printing errors, lost mail, processing mistakes, or fraud to creep into the final count.
Alito's dissent specifically warned about this scenario. Close races where the lead swings back and forth for weeks as late ballots trickle in fuel suspicion regardless of whether anything improper happens. This severely damages public confidence. Voters don't need much uncertainty to doubt election outcomes, and Green Bay just supplied a fresh dose of it.
Alito noted that by the majority's interpretation of federal election law, nothing stops states from dragging out mail-in ballot counting until new Members of Congress are sworn in or the Electoral College casts its ballots for a new president.
The darkly humorous timing of Green Bay's second ballot error reminds us how dangerously unfortunate this ruling is. It now falls to the voters in each state to prevent Green Bay-style errors from discouraging voters or distorting election outcomes. The easiest way would be to require absentee voters to mail in their ballots in time to arrive by Election Day. This would prevent the slow trickle of ballots that shift outcomes after Election Day.
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