In major win for California, SCOTUS says states can count ballots that arrive post-Election Day

In an unexpected victory for California and other states where most voters mail in their ballots, the Supreme Court ruled Monday that election officials can count ballots that are postmarked by Election Day.

Republican leaders and President Donald Trump's administration argued that only ballots received by Election Day can be tabulated - an argument with huge implications for California, where more than 80% of the state's 16 million voters participated by mail in the 2024 general election.

But in a 5-4 decision, Justice Amy Coney Barrett, a Trump appointee, said the Constitution leaves those decisions up to the states. In California, ballots mailed by election day and received within seven days can be counted.

"The defining element of an ‘election' … has always been the electorate's choice of candidate," Barrett wrote. "The electorate's choice is made when voting is complete, not when ballots are received."

She was joined in the majority by Chief Justice John Roberts and the court's three Democratic appointees, Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson.

In dissent, Justice Samuel Alito wrote that accepting the "late-arriving ballots effectively postpones the date on which the electorate's choice is made" and goes against federal law.

The case originated in Mississippi, which has a five-day grace period for election officials to count all ballots that were postmarked by Election Day. The Republican National Committee sued Mississippi, arguing the state's law that allows ballots to be counted if they are postmarked by Election Day, but arrive later, violates federal law. Those in favor of ballot grace periods argued that's a disingenuous reading of the law and that requiring states to stop receiving ballots after Election Day would impose catastrophic burdens on local election officials, and disenfranchise millions of eligible voters.

"Today's decision recognizes a basic reality: Mail delays happen. When people vote by Election Day, their ballots should not be discarded because of those delays," said California Attorney General Rob Bonta. "Since our nation's founding, states have been primarily responsible for regulating elections, and we are pleased that the U.S. Supreme Court has respected that authority."

California allows ballots received up to seven days after Election Day to be counted, so long as they are postmarked by Election Day. California has faced a wave of criticism following its June 2 primary for the length of time it takes to count votes and determine winners, though two of the state's most high-profile contests - the races for governor and Los Angeles mayor - had enough votes counted to show clear winners within a week.

California is one 30 states and Washington D.C. that allow grace periods for at least some voters, and ending them will have an outsize impact on rural, overseas and military voters who rely on the Postal Service.

The unexpected decision comes after a string of major wins for Trump before the court, which recently gutted a major provision of the landmark Voting Rights Act. It comes nearly three months after Trump issued an executive order seeking to sharply restrict mail voting.

Trump has called California's election management "crooked" and described voting by mail as "mail-in cheating." Asked by reporters why he voted by mail in a recent election in his home state of Florida, Trump replied, "Because I'm president," and had other things to do in Washington, D.C.

The length of time California takes to count ballots has come under intense scrutiny. Under California law, county election offices are required to verify the signature of each mail ballot before it can be tallied. It takes time.

In Los Angeles, Assistant U.S. Attorney Bill Essayli, a Trump ally, opened what he described as "multiple election fraud investigations" during California's recent primary elections. So far, the administration has not provided any evidence demonstrating how California has "cheated" Republicans.

Voting by mail increased during the Covid-19 pandemic, starting in 2020, and has continued to rise. That's when California started sending mail-in ballots to every registered voter. It was also during the pandemic that the partisan split emerged: Nationwide, 58% of Democratic voters cast their ballots by mail in 2020, compared to 29% of Republicans. Those disparities have declined somewhat but still exist.

Election officials say the reasons for California's slow vote-counting are unrelated to factors that threaten election integrity. Voters turn in their ballots close to or on Election Day, creating a bottleneck for stretched-thin county staffs, they say. There's also the fact that California has millions more voters and far more territory to handle than virtually every other state.

"People are used to instant results," said Jesse Salinas, the president of California Association of Clerks and Election Officials. "You can't have both speed and accuracy to the level that we want for the security to still be in place."

Grace periods give states "enormous practical benefits and few, if any, negative consequences for election officials," wrote Jonathan Miller, director of the Oakland-based Public Rights Project, in an amicus brief arguing in favor of grace periods on behalf of local governments

Veterans for All Voters CEO Alberto Ramos, a former Navy submarine officer, said at a recent news conference that his group supported a seven-day grace period for military voters. He worked as his submarine's voting assistance officer, toting around a thick binder with voting deadlines.

He said grace periods help ensure military ballots are counted - that the sailors serving under water "could still help choose the leaders who might one day send them off to war."

Trump supported, and continues to promote, federal legislation, called the SAVE America Act, would require Americans to display a citizenship document, such as a passport or birth certificate - papers that millions of U.S. citizens lack - when they register to vote. The bill passed the House this year but was defeated on a 48-50 vote in the Senate.

This November, Californians will decide on a Republican-sponsored state constitutional amendment that would require them to present a government identification document, such as a driver's license, passport, Social Security card or birth certificate, when they vote in person at the polls.

"There is a tension between resources and the rules that are being dropped on election officials that are, quite honestly, incredibly challenging," Salinas said.

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