John Roberts to once again rewrite election laws by fiat

Another act of lawless judicial imperialism is almost certainly forthcoming:

The Supreme Court seems inclined to block states from counting mailed ballots that are postmarked by Election Day but arrive a few days afterward.

During a lively two-hour hearing Monday, key conservative justices appeared sympathetic to arguments from the Trump administration and the Republican Party that all ballots must be in the hands of election officials by Election Day in order to count.

A decision saying so would strike down laws in 14 states that allow a grace period for mailed ballots to arrive, provided that voters drop them in the mail by Election Day. About a dozen other states have a similar grace period that applies only to military and overseas voters. No states accept ballots that are postmarked after the election.

The high court’s decision is expected by this summer. Justice Brett Kavanaugh asked the Republican Party’s lawyer, Paul Clement, if there would be enough time for the decision to take effect and apply to midterm elections this fall. Clement said there would be.

Remember that the “Purcell Principle” is “it is always too late to implement a decision on elections that favors Democrats and never too late to implement a decision that favors Republicans.”

I should say that the question of whether ballots should be counted in a timely manner is an extremely rare case where I agree with the modal position of Republican elites. Systems where the results of even typical, clearly decided elections aren’t announced until days after the fact do, in fact, undermine trust in the system (which is why Republicans in states like Pennsylvania and Wisconsin have acted to prevent the timely counting of mail ballots.) If I were designing the rules, there would be universal vote by mail but all ballots would have to be received by election day to count, and there would be efficient advance counting to ensure that results are generally announced on election day. But leaving aside the fact that eliminating the grace period won’t necessarily guarantee the timely counting of ballots, the much larger problem here is that the practice of accepting ballots postmarked by election day but received afterwards isn’t illegal. Congress is free to ban the practice if it chooses to, but it just hasn’t. This inevitable decision has no basis in law, and is simply driven by a larger baseless Trumpian paranoia about mail voting:

Some very disturbing questions from the Republican-appointed justices in today's Supreme Court arguments—definitely several votes to strike down laws in 30 states which count mail ballots that arrive shortly after Election Day, as long as they're cast by Election Day. Not what I was hoping to hear.— Mark Joseph Stern (@mjsdc.bsky.social) Mar 23, 2026 at 7:41 AM

SO many questions from the Republican-appointed justices so far having little or nothing to do with the law—they're venting their evident frustrations about modern election laws that broadly authorize mail voting and fretting that they're spoiling elections with distrust and fraud. Really bad!— Mark Joseph Stern (@mjsdc.bsky.social) Mar 23, 2026 at 8:03 AM

It's also pretty clear that the Republican-appointed justices do not understand a great deal about how elections are actually administered. Their questions (and especially hypotheticals) are built on weird, paranoid fantasies that do not align with reality. bsky.app/profile/wing…

[image or embed]— Mark Joseph Stern (@mjsdc.bsky.social) Mar 23, 2026 at 8:25 AM

The willingness of the Republican justices to unilaterally amend large swaths of election laws with no basis in law whatsoever makes their holding that partisan gerrymandering cases are non-justiciable because the courts cannot enter the “political thicket” even more farcical than it is on its face. This is an imperialist institution far transcending its constitutional limits, and this problem is going to keep getting worse.