EDITORIAL: Ballot rule in Nevada, other states, survives scrutiny

The Supreme Court’s decision allowing states to count mail-in ballots received after election day is legally defensible, but that doesn’t mean the practice is good for democracy.

The justice on Monday ruled 5-4 to uphold laws in a handful of states — including Nevada — that provide a grace period for returning mail ballots. The Republican National Committee, in challenging such a law in Mississippi, had argued that federal law demands that ballots be in the hands of election officials by election day.

Writing for the majority, however, Justice Amy Coney Barrett wrote that, as long as the ballots are cast by election day, they may be included in the final tally if received by the state’s deadline. Federal “election day statutes say nothing about ballot receipt, and we cannot add to the words Congress chose,” she noted. Thus, federal law does not prevent states “from counting ballots postmarked before election day yet received afterward.” Justice Barrett wrote it was up to Congress to impose a national deadline, if members were so inclined.

Election officials in Nevada and a dozen other states breathed a sigh of relief upon hearing the decision. A ruling barring the practice would have complicated the logistics of the upcoming midterms in states that count late ballots. “Nevada’s elections will not change,” Secretary of State Francisco Aguilar said in a statement. “We will continue to run safe, secure and accessible elections this year without the interference and intimidation of the federal government.”

Yet there’s no getting around the fact that counting late ballots breeds mistrust in the system and drives conspiracy theories about rigged elections, particularly when the practice is paired with “ballot harvesting,” which allows third parties to collect and return mail ballots filled out by other voters. In addition, counting late ballots undermines the timely reporting of election results, as California proves year in and year out.

The practice is particularly unnecessary given that some states have liberal ballot policies while still demanding that those who choose to vote by mail do so under a deadline that allows states to tally results on election day. As we’ve said in the past, that’s common sense, not voter suppression.

All of this was on the minds of the court’s dissenters. Writing for the minority, Judge Samuel Alito noted that counting ballots received after election day was “inconsistent with statutory text, legal context, historical practice and precedent” and “spawns a slurry of troubling election-law questions and risks further undermining Americans’ confidence in election integrity.”

He’s right about that. The bottom line: Laws in Nevada and other states that allow counting ballots well after election day have survived Supreme Court scrutiny, but they’re still a bad idea.