It could soon become more challenging to make sure that your mail-in votes count on Election Day. The Supreme Court is hearing arguments about whether or not states should be able to count ballots that are sent prior to the Election Day deadline but arrive later. Here is what the court is signaling as it heard arguments about the timing of these already controversial ballots on Monday.

Supreme Court Ruling Could Impact Pivotal Midterm Elections

The Republican National Committee (RNC) is arguing that states cannot count ballots that are postmarked by Election Day but do not arrive at their destination until after that date. The U.S. Supreme Court heard over two hours of arguments from the RNC last week as President Donald Trump continues to beat the drum about his opposition to mail-in voting. The president has not been shy about asking Congress to ban this method of voting in most cases.

The current case brought before the nine justices considers a Mississippi law that is similar to regulations in over a dozen other U.S states that accept mail-in ballots as long as they are postmarked before or on Election Day. The case could significantly impact the upcoming midterm elections in November. While it is not a presidential election year, tight margins in both the Senate and the House mean that this election cycle will influence who controls each chamber of Congress.

The court has not yet offered its formal opinion on the case. However, the oral arguments signal that the court is divided over whether a current federal law responsible for election dates prevents ballots from being counted after Election Day. A few of the justices also raised questions about whether a potential limitation on ballots that arrive after Election Day would also call into question the overall legality of the early voting process.

The mail-in ballot process varies by state. Several of the country's most populous states, including New York, California, and Texas, have laws similar to Mississippi. There are also vast differences in the eligibility requirements for mail-in voting. For example, Mississippi limits mail-in voting to the elderly and disabled people, while Washington state only uses mail-in voting for the entire electorate.

A potential ruling by the court striking down the Mississippi statute would throw mail-in voting across the country into chaos. A ruling that sides with the RNC could also have lasting consequences for voters who live overseas. According to a brief recently filed by former national security officials, 29 states give voters living abroad and in the military extended deadlines.

There is a growing trend for red states to change election laws to ban late-arriving ballots. Adding fuel to the RNC cause is recent allegations from the Trump administration that mail-in ballots are more likely to be rigged.

Conservative Justices Signal That They Will Side With the RNC

Conservative Justice Samuel Alito voiced concerns that late-arriving ballots simply suggest a higher chance of fraud. One of six conservatives on the court, Alito asked whether his colleagues should consider Congress' rule to set an election date in an effort to prevent fraud or the appearance of fraud.  

Fellow conservative Justice Brett Kavanaugh echoed Alito's thoughts, asking Mississippi Solicitor General Scott Stewart, "Is that a real concern? Is that something we should be thinking about, confidence in the election process?" Conservative justices appeared to be equally skeptical of the Mississippi law, putting Stewart in the hot seat to defend his state's position.

Conservative Justice Amy Coney Barrett was less clear about where her thinking was headed. For example, Barrett later said that although there were good reasons to require mail-in ballots to actually arrive by Election Day, she still had questions about how federal law interprets these deadlines. Chief Justice John Roberts played his cards closer to the vest, not signaling where he would land on the issue.

The three liberal justices said that states have traditionally had a good amount of leeway to run elections. Current federal laws, as passed by Congress, are only there to set election dates and do not mandate any other requirements, such as deadlines for ballots to arrive.

For example, liberal Justice Ketanji Brown Jackson circled back to House Republican legislation that would restrict mail-in ballots, suggesting that the GOP is looking at the Supreme Court to rule on a policy question. Jackson told an attorney representing the RNC that it should be Congress deciding the law rather than the court.

Similarly, liberal Justice Elena Kagan used her time to question whether a potential ruling that took authority out of the hands of the individual states would then mitigate the availability of early voting for Americans who need it for various reasons.

The Mississippi law in question allows mail-in ballots to count up to five days after the official Election Day if they are postmarked by that date. The state is arguing that there is nothing listed in federal election law that prevents states from extending the deadline to count ballots as long as they were cast and postmarked by Election Day.

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