鈥溾�楾he longer after Election Day any significant changes in vote totals take place, the greater the risk that the losing side will cry the election has been stolen,鈥欌�� stated Justice Brett Kavanaugh, quoting from a New York University law professor鈥檚 analysis during recent oral arguments in Watson v. Republican National Committee.
The case involves a Mississippi law that allows ballots postmarked by Election Day to be received and counted. Fourteen other states do likewise, and 29 states, including Colorado, allow at least some military and overseas ballots to be counted after Election Day. Opponents contend that the Mississippi law violates a federal law that requires all states to hold congressional and president elections on the first Tuesday following the first Monday in November.
Kavanaugh and the professor he quotes are right; if ballots received after Election Day decide a close election, it could undermine confidence in the results. However, that does not mean Mississippi鈥檚 law conflicts with the federal law or the Constitution. Nor will overturning it restore skeptics鈥� faith in our elections, as their doubts originate not from inadequacies in state laws but deceit by self-serving politicians.
Trump casts Florida mail ballot as he pushes Congress to severely limit that voting option
The Constitution gives states primary authority over elections but allows Congress to weigh in which it did in 1845 to establish the first Tuesday following the first Monday in November as Election Day.聽This federal law does not dictate when states must receive ballots only when they are cast. If a ballot is postmarked by Election Day, then presumably the person did cast his or her vote on or before Election Day.
Some states have compelling reasons to extend a grace period. Ballots from voters in remote Alaska villages accessible only by plane may be delayed by weeks due to inclement November weather. Do all states have such a compelling reason to allow a grace period? No, some are holdovers from the COVID-19 era. However, whether states have adequate reasons to provide an extension is not for the court to decide but for that state鈥檚 voters and their state assemblies.
Some suggest that states with geographic challenges could just send out ballots earlier. Voters in remote regions would be expected to mail their ballots in early if they wanted them to count. What if negative news about a candidate breaks in October? Those voters could not vote accordingly. Americans overseas, including servicemen and women, would face a similar unfair dilemma: vote early before the campaign is over or risk not having one鈥檚 vote count. By annulling state grace periods, the Court would, in effect, change the date of Election Day for those residents to one much earlier. If anything, that appears to be a violation of the federal law and the Constitution.
If denying those in remote Alaska and overseas the ability to vote on Election Day would put to rest election conspiracy theories, such a ruling might be countenanced, but let抖阴ap be honest, it won鈥檛. Distrust of mail-in ballots is not rooted in evidence. A聽November 2025 Brookings Institution study聽found only four cases of fraud for every 10 million mail-in ballots cast. In this state, county clerks have implemented numerous safeguards to catch people who vote other people鈥檚 ballots. When it happens, which it does periodically, those people go to jail.
Misgivings about Colorado鈥檚 mail-in ballots, voting machines, and proof of citizenship procedures exist not because of inadequate policies but because President Donald Trump and other dishonest politicians and their enablers have sown doubt. They will cry that elections have been stolen from them, regardless of the policies in place.
Krista Kafer is a Sunday Denver Post columnist.
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