(DCNF)—Fox News legal analyst Gregg Jarrett said Monday that he expects a skeptical Supreme Court majority when it considers state laws allowing mail-in ballots to be counted after Election Day.
The Supreme Court on Monday appeared ready to restrict states’ ability to count mail-in ballots that arrive after Election Day, citing concerns about fraud and election integrity. Appearing on “The Evening Edit,” Jarrett said the justices have serious concerns about delays that stretch vote counting for days or even weeks, noting that such delays conflict with federal law, which sets a fixed Election Day.
“I would count a majority as skeptical here that these late arriving ballots can be counted. And I think with very good reasons, which we heard, why should important elections be held hostage to our crummy postal system delays that stretch for days or even weeks? Because that’s contrary to federal law that sets election day on a fixed date,” Jarrett told Elizabeth MacDonald. “And conservative justices expressed worry that these delays are undermining confidence in electoral integrity, all too often creating the appearance of fraud by radically changing the trajectory of an election as all the votes are counted quite late, many of them quite late.”
Jarrett said that late-arriving ballots and broader voting schemes undermine public confidence and highlight the need for clear Election Day deadlines.
“Justice [Brett] Kavanaugh, for example, said charges of election rigging explode whenever the apparent winner of the morning after the election ends up losing due to late arriving ballots. It’s a valid point. Now, of course, not talking about barring early voting, it would simply have to be done pursuant to a hard deadline election day,” Jarrett added. “But I did notice how the oral arguments also strayed to broader concerns about ballot harvesting and all these other schemes that are ripe for illegal acts and fraud. The court is aware, Liz, that people have lost faith in the system. It needs fixing, and Congress refuses to fix it.”
Under Mississippi law, mail-in ballots can be counted up to five days after Election Day, but both the Trump administration and the Republican National Committee argue that federal law fixes Election Day as the deadline, preventing states from accepting late-arriving ballots. During oral arguments, Justice Neil Gorsuch raised concerns that this approach could allow neighbors, family members, or party operatives to handle ballots. Gorsuch specifically noted the possibility of voters trying to recall ballots before delivery in a way that could “swing the election” in the campaign’s final days.
Justice Brett Kavanaugh then asked how much the “appearance” of fraud should influence the Court’s decision.
“If you have to have a deadline, which you acknowledged, and having a deadline of November 3 rather than November 10 for receipts doesn’t disenfranchise anyone, why wouldn’t it make more sense to take account, in some respect, of that concern as we think about how the text and history fit together?” Kavanaugh asked.
The Supreme Court’s oral arguments concluded without a clear resolution.
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