Washington — The Supreme Court on Monday said it will decide whether federal law prohibits states from counting mail-in ballots that arrive after Election Day.
The legal battle before the court involves Mississippi’s procedures for counting late-arriving absentee ballots, but comes as the justices are considering whether to revive a Republican congressman’s lawsuit challenging a similar law in Illinois.
The Supreme Court heard arguments in that case, brought by Rep. Michael Bost, in October, though the question before it is a procedural one.ele
The court fight involving Mississippi’s law, though, involves the meaning of “Election Day” and could have ramifications for the slew of states that allow for the counting of mail-in ballots that are received after the day of the election just ahead of the 2026 midterm elections.
President Trump has often criticized mail-in voting, claiming that it invites voter fraud. Mr. Trump signed an executive order in March that targets the rules for late-arriving ballots by directing the attorney general to take “all necessary action” to enforce the federal laws setting a uniform election day against states that allow for the counting of ballots received days later. The directive, however, has been blocked by federal courts.
Still, Republicans in some states have sought to tighten the rules around mail-in voting, and in three states, lawmakers voted to eliminate the grace period for receiving mail-in ballots this year.
At issue in the case is whether U.S. laws setting the day of the federal election trump state laws that allow late-arriving mail-in ballots to be counted. Congress has established that in election years, the Tuesday following the first Monday in November is the uniform day for selecting candidates for the House, Senate and president. But in recent years, several states have enacted legislation allowing some ballots to be received and counted after Election Day.
In Mississippi, state law allows for absentee ballots postmarked by the day of the election to be counted so long as they’re received up to five days after. Mississippi’s measure was initially enacted during the COVID-19 pandemic and then made permanent.
Sixteen states in all will accept and count a mail-in ballot if it arrives after election day but is postmarked on or before it, according to the National Conference of State Legislatures.
In January 2024, the Republican National Committee, Mississippi Republican Party, a voter and county election commissioner filed a lawsuit against state election officials over its rules for mail-in ballots and claimed they were preempted by federal statutes dictating the day for federal elections. The plaintiffs argued the state’s procedures violate their constitutional rights under the First and 14th Amendments. The Libertarian Party of Mississippi is also involved in the dispute.
A U.S. district court in Gulfport, Mississippi, ruled for the state officials, finding that the state’s law doesn’t conflict with the federal laws setting election day. The court found that in the absence of federal laws regulating mail-in ballot rules, “states retain the authority and the constitutional charge to establish their lawful time, place, and manner boundaries.”
Judge Louis Guirola wrote in his decision that under Mississippi’s law, no “final selection” is made after Election Day.
“All that occurs after election day is the delivery and counting of ballots cast on or before election day,” the judge said.
The GOP groups appealed that decision to the U.S. Court of Appeals for the 5th Circuit, and a panel of three judges ruled for the Republicans.
“Federal law requires voters to take timely steps to vote by Election Day. And federal law does not permit the State of Mississippi to extend the period for voting by one day, five days, or 100 days,” Judge Andrew Oldham wrote for the unanimous court. “The State’s contrary law is preempted.”
In his decision for the unanimous panel, Oldham said Election Day “is the day by which ballots must be both cast by voters and received by state officials.” The election is still ongoing while officials are still receiving ballots, he said.
“Although a single voter has made his final selection upon marking his ballot, the entire polity must do so for the overall election to conclude,” Oldham wrote. “So the election concludes when the final ballots are received and the electorate, not the individual selector, has chosen.”
After the full 5th Circuit declined to rehear the case, Mississippi officials appealed to the Supreme Court, warning that if allowed the stand, the lower court’s decision will have “destabilizing nationwide ramifications.”
They argued in a filing that voters make their choice of a federal candidate when they mark and submit their ballots by election day, so the election has then occurred, even if their ballots aren’t received until several days later.
Counting votes isn’t part of the election, Mississippi officials said, which is why that process can lawfully take place after election day.
The state warned that the rule embraced by the 5th Circuit would require getting rid of mail-in ballot rules in many states, and said its decision would open the door to nationwide litigation against those laws, which would invite chaos ahead of the next federal elections.
“Less than 18 months remain before the next federal election — and state electoral processes start much sooner,” Mississippi officials wrote. “States need to know whether federal law permits post-election-day ballot-receipt laws — and thus whether they must change their laws to comply with federal law or whether they may change their laws on policy grounds. The stakes are high: ballots cast by — but received after — election day can swing close races and change the course of the country.”
Lawyers for the Republicans, meanwhile, said the 5th Circuit’s decision was correct
“So long as election officials continue to accept ballots, the election isn’t over; ‘the proverbial ballot box’ is not ‘closed,'” they wrote in a filing. The GOP groups said that allowing mail-in ballots to be received after election day extends the contest beyond the parameters set by Congress.
“Modern election deadlines are anything but ‘uniform,'” the Republicans wrote. “Many States can’t conclude their elections for weeks after election day because they’re still receiving ballots from voters. Weeks after the ‘day for the election’ has come and gone, the elections in those States continue.”
GOP lawyers argued that adopting the state’s position would allow states to engage in “gamesmanship,” try new deadlines and could lead to “fraud, uncertainty and delay.”
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