Barrett catches Alito cherry-picking 'short-lived outliers' in election law case as he accuses her of creating a 'serious risk' to 'our system of self-government'

Left: U.S. Associate Supreme Court Justice Samuel Alito Jr. attends inauguration ceremonies in the Rotunda of the U.S. Capitol on Jan. 20, 2025, in Washington, DC (Chip Somodevilla/picture-alliance/dpa/AP Images). Right: Associate U.S. Supreme Court Justice Amy Coney Barrett poses for the official photo at the Supreme Court in Washington, DC on Oct. 7, 2022. (Photo by OLIVIER DOULIERY / AFP) (Photo by OLIVIER DOULIERY/AFP via Getty Images).

After finding herself on the other end of a major decision on Monday, Justice Amy Coney Barrett led a 5-4 Supreme Court majority in ruling that Mississippi can count ballots "postmarked by election day but received up to five days thereafter" — as "nothing in the federal election-day statutes requires ballots to be received by election day."

Barrett's majority, including the liberal wing of the court and Chief Justice John Roberts, sided against the Republican National Committee and Mississippi Republican Party plaintiffs who insisted that absentee ballots must be "received" by Election Day to be counted.

While acknowledging that "[e]lection fraud and its appearance are serious issues," Barrett affirmed states "have the power to set the date by which [ballots] must be received."

Justice Samuel Alito's dissent — joined in full by Justices Clarence Thomas and Neil Gorsuch, and in part by Brett Kavanaugh — answered that both mail-in voting and early voting are "popular" methods in the 21st century, and that's fine.

"[R]espondents do not dispute the lawfulness of these modern practices. Nor do I," Alito said, before stating his area of disagreement. "But acceptance of these practices cannot change the fact that under federal law, the electorate's collective choice must still be authoritatively expressed on election day."

By "incorrectly remov[ing] this safeguard from federal law," Barrett's majority incentivized "bad actors […] to stuff ballot boxes when early election results suggest a tight race" and "create[d] a serious risk of further undermining public confidence in our elections and our system of self-government."

Barrett fired back that Alito should take it up with the Uniformed and Overseas Citizens Absentee Voting Act.

"The defining element of an 'election'—the term used in all three federal statutes—has always been the electorate's choice of candidate. And a related federal statute, the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), confirms that while federal law dictates when ballots must be cast, state law dictates when they must be received," Barrett wrote.

In a footnote, Barrett then turned the tables on the dissent for apparently cherry-picking which "short-lived" statutes from a century or two ago to embrace and which to ignore.

"Things started to change during the Civil War, when some States allowed soldiers to vote from afar by absentee ballot. Access to absentee voting expanded throughout the 20th century, and today, every State lets at least some residents vote absentee," Barrett explained first. "In fact, federal law requires States to permit absentee voting in certain circumstances."

Then she noted that states "began counting absentee ballots received after election day" during World War I.

"The dissent brushes off these World War I statutes as 'short-lived outlier[s],' but relies heavily on Civil War mail-in voting statutes that were themselves 'short-lived outlier[s],'" the footnote sharply observed.

If there is to be a "national solution," Barrett concluded, that's up to Congress.

"The election-day statutes say nothing about ballot receipt, and we cannot add to the words Congress chose," she said.