Washington — The Supreme Court on Monday wrestled with a major elections dispute involving whether federal law bars states from counting mail ballots that are postmarked by Election Day but received by election officials later.
The case before the high court, known as Watson v. RNC, involves Mississippi’s deadline for late-arriving mail ballots and whether its law, as well as similar measures from 13 other states, conflicts with federal statutes that set Election Day as the Tuesday after the first Monday in November in certain years.
President Trump has pushed to end mail voting, with some exceptions, and a decision in the case from the Supreme Court is expected to come months before the November midterm elections.
Across roughly two hours of arguments, the justices asked sharp questions of lawyers for both the Republican National Committee, which is challenging the grace periods, and Mississippi officials, who are defending the law. Several of the conservative justices, including Justices Samuel Alito and Clarence Thomas, appeared skeptical of the state laws governing late-arriving ballots.
But the three liberal justices, Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson, defended the measures as an exercise of states’ authority to set rules for federal elections.
Chief Justice John Roberts and Justice Amy Coney Barrett, meanwhile, each asked questions indicating they were concerned about how a decision invalidating the deadlines for late-arriving ballots could affect other election rules, including those allowing for early voting. The RNC and the Trump administration have argued that under the federal statutes setting a uniform day for the elections for president and Congress, Election Day is the day the ballot box closes.
Kagan and Barrett both pressed Sauer and Paul Clement, who argued on behalf of the RNC, about whether a decision in favor of the GOP would require election officials to complete other tasks on Election Day, such as adjudicating voter-qualification issues.
“Once we go down this road, once we say that these statutes that don’t say anything actually have some significant preemptive effect, where are we going to end up?” Kagan asked Solicitor General D. John Sauer, referring to the federal statutes setting a uniform Election Day. Sauer argued for the Trump administration and urged the justices to strike down the grace periods.
All 50 states require ballots to be marked and submitted by Election Day. But 14 states and the District of Columbia have enacted so-called grace periods, in which ballots that are postmarked by Election Day can be counted if they arrive after that day. Twenty-nine states and the District of Columbia allow at least some military and overseas ballots to be counted if they’re received after Election Day, according to the National Conference of State Legislatures.
Four states — Kansas, North Dakota, Ohio and Utah — passed laws last year eliminating grace periods and now require mail ballots to be received by Election Day in order to be counted.
Before the Supreme Court is Mississippi’s law, which allows mail ballots that are received up to five days after the election to be counted as long as they were postmarked by Election Day. In 2024, the RNC and the state GOP, as well as Mississippi’s Libertarian Party, filed lawsuits challenging the state’s ballot-receipt deadline.
The plaintiffs argued that federal statutes enacted in the 1800s that set a uniform day for the election for president and Congress require ballots to be received by Election Day. Mississippi’s grace period, the Republicans alleged, conflicts with those federal laws.
A federal district court upheld Mississippi’s law, finding it did not conflict with the federal Election Day statutes because, when Congress enacted those laws, the ordinary meaning of “election” was the final choice of a candidate by the voter.
But the U.S. Court of Appeals for the 5th Circuit reversed that decision and ruled that federal law trumps Mississippi’s deadline, since “election” day is the day by which ballots must be cast by voters and received by state election officials.
“While election officials are still receiving ballots, the election is ongoing: The result is not yet fixed, because live ballots are still being received,” a panel of three judges on the 5th Circuit found.
Mississippi officials appealed the decision to the Supreme Court, which agreed in November to decide whether states can count ballots that are cast by Election Day but received by election officials after that day.
Mississippi Secretary of State Michael Watson, a Republican, is urging the Supreme Court to uphold the law. In filings with the high court, he argued that his state and others with post-Election-Day ballot-receipt deadlines have made a policy choice, which reflects the nation’s system of federalism. The Constitution’s Elections Clause gives states the authority to set the rules for federal elections, and offices at the state and local levels oversee their administration, though Congress can pass election regulations.
States have “broad power over elections,” Mississippi Solicitor General Scott Stewart told the justices. They have exercised that authority for more than 100 years, he said, including through laws requiring secret ballots and setting post-Election-Day deadlines for mail ballots.
But Alito told Stewart that his position suffers from a “variety of line-drawing problems,” including who transmits mail ballots to the state, the length of time after Election Day that those ballots can be accepted and whether they’re required to be postmarked.
“We don’t have Election Day anymore. We have election month, or we have election months,” he said. “The early voting can start a month before the election, the ballots can be received a month after the election.”
Watson and others defending the grace periods have warned that if the Supreme Court adopts the 5th Circuit’s rule, it could jeopardize the laws of the 29 states that accept some ballots after Election Day, including from military and overseas voters. There are nearly 4 million servicemembers and U.S. citizens living abroad who rely on mail ballots to vote, according to a coalition of groups representing troops, military families and overseas voters.
But lawyers for the RNC urged the Supreme Court to uphold the 5th Circuit decision that invalidated Mississippi’s law, arguing that the election ends when the ballot box is closed, not when voters make their selection. The term “election,” Clement argued, refers to the public process of selecting candidates for federal office.
“Finality should take place on Election Day,” he told the justices.
Election Day encompasses the submission and receipt of ballots, and both must conclude on the date set by Congress, the Republicans and Libertarian Party of Mississippi said in Supreme Court filings. They also argued that a patchwork of different ballot-receipt deadlines only replicates the problems Congress was trying to fix when it set a uniform day for the election in the 19th century, namely to prevent fraud and the appearance of fraud.
“In the eyes of many, [grace periods] have hampered the efficiency and integrity of elections,” the RNC argued.
Both Alito and Justice Brett Kavanaugh raised the issue of voter fraud or the potential for fraud. Alito noted that confidence in an election “can be seriously undermined” if the outcome is “radically flipped” once late-arriving ballots are counted.
Kavanaugh, meanwhile, asked Stewart about whether there is risk of destabilizing election results if the apparent winner the day after the election goes on to lose.
“Is that a real concern?” he asked. “Is that something we should be thinking about, confidence in the election process?”
Mr. Trump frequently claims the 2020 election was rigged against him, though dozens of legal battles that alleged fraud and sought to reverse the results in key states were unsuccessful. As his path to victory against Joe Biden narrowed as votes were counted in 2020, Mr. Trump repeatedly called on election officials to “stop the count.”
The president has perpetuated and amplified claims about fraud through mail voting, though such instances are rare. There is no evidence of widespread voter fraud, according to elections experts. Stewart told the justices that the Trump administration has not cited an example of fraud from ballots postmarked by and received after Election Day.
The Trump administration is backing the GOP in the case and has argued that, under federal law, states cannot count ballots in elections for president, the Senate and House that they receive after Election Day.
“[I]n setting a uniform ‘election day’ for the Nation, Congress mandated what those words have always required: On election day, the ballot box must close, and every vote must have been received,” Sauer wrote in a friend-of-the-court brief.
A decision in the case involving Mississippi’s ballot-receipt deadline is expected to come by the end of June or early July, raising concerns that if the Supreme Court strikes down its grace period, election officials in some states will be left scrambling to inform voters about changed deadlines months before the November midterm elections.
Kavanaugh pressed Clement as to the ramifications of the timing of a ruling, though the lawyer said states would have enough time to educate voters about a new deadline.