Opinion editor’s note: Strib Voices publishes a mix of guest commentaries online and in print each day. To contribute, click here.
•••
We learned recently that the U.S. Supreme Court has agreed to hear a case involving the question of whether Mississippi’s law providing for acceptance of ballots postmarked by Election Day is unlawful under the Voting Rights Act and/or the Civil Rights Act. This issue has been percolating among partisans who appear to understand that if Mississippi’s law is overturned, many Mississippi voters will be disenfranchised.
The National Conference of State Legislatures reports that 34 states now require delivery of mail ballots before or by Election Day. If 34 states have such a requirement, that is a fair indication of the majoritarian view in the U.S. on the subject. If we had a U.S. Supreme Court that reflected the majoritarian view in this country, that might be the end of the matter. But the majority is not represented on the court, so we must look further. As with other issues recently, the strategy among partisan advocates in litigation appears to be one of “states’ rights when we say so” and “no states’ rights when we say otherwise.” With respect, the position that the opponents take is flagrantly a partisan move designed to have political effects.
The opponents’ position also undermines the conduct of Mississippi business if we take the argument to its farthest point. The mailbox rule has long provided for a modicum of certainty in business transactions. The mailbox rule stands for the proposition that the essence of the mailing is effective on mailing or dispatch. The rule derives from Adams v. Lindsell (1818), an English case where the court held that a contract was formed despite the offeror not receiving the acceptance until after the offeror assumed that the offer had not been accepted. The rule provides certainty in transactions when delay is at times inevitable.
At present, Bloomberg Law reports that all 50 states have adopted the Uniform Commercial Code, although not every state has adopted every article. On this issue, then we have an uber majority. Of course, parties can contract around the method of acceptance and that, in some measure, may be what we are talking about here: Contracting (mandating, really) around the states’ mailbox rules that have held up very well for some time. Mississippi, notably and however, has adopted Article 2, which is the article that models the mailbox rule.
Adding further fuel to the conflagration, Democracy Docket reports that the U.S. Postal Service has announced a new policy known as “Regional Transportation Optimization” that will “eliminate evening mail pickups from post offices more than 50 miles away from a regional processing facility. The changes, already in effect for roughly 16% of the U.S. population, will mean mail will be postmarked and delivered at least one day later than before … . The delivery delay means that if mail voters wait until the last day or two before the election to mail their ballot, as they often have done before, they could be disenfranchised.”
Upending settled expectations of Mississippi voters isn’t a strategy that will play out well down the road. Admittedly without a survey in hand, one imagines that it may be Mississippi rural voters that will be most affected if the state’s law is struck down, and it could be a case of the partisans shooting themselves in their partisan feet. Partisans who once touted absentee voting (and were very successful at it) now make wobblesome U-turns when they see that what worked previously for them and the party no longer suits their political goals. Political parties play games — we will never put an end to that. Kentucky Secretary of State Michael Adams proved that election outcomes are the same, despite political games, and in this way expanded early voting in Kentucky. Overturning Mississippi’s law would likely result in violations of both the Voting Rights Act and the Civil Rights Act, laws that the opponents purport to enforce in the appeal to the U.S. Supreme Court. It’s all a bit ipsy dipsy, but ipsy dipsy may be the desired end.
