The US supreme court appeared poised on Monday to curtail how mail-in ballots can be counted if they arrive after election day, which would affect laws in more than a dozen states during a midterm election year.
The justices are considering Watson v Republican National Committee, a challenge over a Mississippi state law that was brought in 2024 by the Republican party. Mississippi allows mailed ballots to be counted if they arrive within five business days of election day, so long as they were postmarked by election day. Mississippi changed its laws in 2020, during the Covid-19 pandemic.
Fourteen states, Washington DC and three US territories have similar laws that allow for late-arriving ballots to be counted. Based on the justices’ questions, it is clear the case isn’t focused narrowly on Mississippi’s grace period, but on other states’ rules, which in some cases allow for a longer grace period and don’t require postmarks.
Mississippi, a red state, is defending its ability to set its own procedures for elections against the challenge from the Republican party, which argues that the grace period violates federal laws that set election day for the first Tuesday of November.
The court’s conservative justices questioned the Mississippi solicitor general, Scott G Stewart, over whether Congress intended to outlaw ballots arriving after election day, pointing to all the ways elections have changed in recent decades. They laid out hypothetical situations, including lengthy grace periods, asking what the limits would be to counting ballots after election day.
“History shows that election administration is dynamic,” Stewart told the justices. “States have wide leeway. They just have to make sure that the voters make a choice by election day.”
Liberal justices asked friendlier questions of Mississippi, bringing up other federal laws that acknowledge such grace periods, like the Uniformed and Overseas Citizens Absentee Voting Act. The liberal justices also said the plaintiffs challenging Mississippi’s laws seem to be implicating early voting, a common practice throughout the states.
“You’re basically saying there are two things that have to happen, and they have to happen on election day, and it’s the casting of the vote and the receipt of the vote,” Justice Elena Kagan told Paul D Clement, who is arguing on behalf of the Libertarian party of Mississippi.
The potential for election fraud, a common theme of the Trump administration, played into the conservative justices’ questioning. Justice Samuel Alito noted “some of the briefs have argued that confidence in election outcomes can be seriously undermined if the apparent outcome of the election on the day after the polls close is radically flipped” by mailed ballots counted later. Several justices also questioned whether a voter could recall their ballot through the mail and change their vote – a hypothetical practice that Stewart said does not happen, claiming “nobody cited a single example in history”.
But it’s not just late-arriving ballots that are counted after election night. In many states, mailed ballots arriving in the days before election day and on the day of the election are still being counted after the polls have closed. Signatures need to be verified, which takes time, and some states allow for ballots to be cured if signatures are flagged for further review.
The RNC lost its initial case in district court, then won in the fifth circuit court of appeals. Ally Triolo, the RNC’s election integrity communications director, said the case is about a “simple principle: ballots must be received by Election Day”.
“This prevents elections from dragging on for days and weeks after voters have cast their ballots, causing confusion and undermining our elections,” Triolo said in a statement.
A host of groups representing voting rights advocates, military voters and overseas voters have filed to support the state’s position in the case, saying that a grace period allows voters with unique burdens to have their ballots counted.
“The logic of the Fifth Circuit’s ruling in this case would upend multiple, long-established state laws that specifically use grace periods to alleviate the unique barriers to voting faced by U.S. military and overseas voters,” an amicus brief from individuals and groups supporting Mississippi’s law says.
In its brief to the supreme court, Mississippi argued that the appellate court’s decision was “wrong”.
“An ‘election’ is the conclusive choice of an officer. The voters make that choice by casting – marking and submitting – their ballots,” the state wrote. “So the federal election-day statutes require only that the voters cast their ballots by election day. The election has then occurred, even if election officials do not receive all ballots by that day. Under Mississippi law, the voters cast their ballots by election day. So federal law does not preempt Mississippi law.”
National Republicans have struggled with mail voting, a common practice in many states, and the rules around it. Some, including Donald Trump, have called to ban mail voting fully, while other Republicans recognize that their voters use mail voting at high rates as well. Getting rid of these grace periods could inadvertently hurt Republican candidates.
The Trump administration and its allies in Congress have sought more control over elections. Trump has attempted to override state and local election laws via executive order, which has largely been blocked by the courts. He is also pushing for the Save America act, a sweeping proof of citizenship and voter ID bill.
