Supreme Court skeptical of allowing states to count mail ballots that arrive after Election Day

The U.S. Supreme Court’s conservative justices on Monday appeared skeptical of the validity of mail-in ballots that arrive after Election Day, in a case that could potentially affect hundreds of thousands of voters during the upcoming midterm elections.

The high court heard arguments on whether federal law overrides a Mississippi law that requires mail-in ballots that are postmarked on or before Election Day to be counted as long as they arrive within five business days of the election. Fourteen states have similar laws, which extend a “grace period” to ballots that arrive through the mail after polls close.

Several conservative justices raised concerns with allowing ballots to arrive after Election Day, including whether voters could recall ballots once they’ve shipped them but before they arrive at election offices. Justice Brett Kavanaugh questioned whether late-arriving ballots risk undermining election confidence.

“‘The longer after Election Day any significant changes in vote totals take place, the greater the risk that the losing side will cry the election has been stolen,’” Kavanaugh said, quoting from an analysis by a New York University law professor.

Broader attacks on mail voting

The case comes before the Supreme Court at a moment of broader attacks against mail-in voting. Four Republican-led states eliminated their ballot arrival grace periods last year. And Congress is mulling proposals that would restrict voting by mail amid a sprawling debate in the U.S. Senate over legislation demanded by President Donald Trump that would impose sweeping new voter restrictions nationwide. That legislation, known as the SAVE Act, is unlikely to pass because of the filibuster.

The Republican National Committee is challenging Mississippi’s grace period law. The party contends a longstanding federal law that sets the Tuesday after the first Monday in November as Election Day for federal offices preempts state laws that allow ballots cast by Election Day, but received later, to count.

Paul Clement, an attorney for the Republican National Committee, argued the prospect that the outcome of an election could change because of ballots arriving after Election Day would be unacceptable to losing candidates. After the 2020 election, President Donald Trump demanded election officials not count ballots that came in after Election Day. States kept counting ballots.

“If you have an election and the election is going to turn on late-arriving ballots in a way that means what everybody kind of thought was the result on Election Day ends up being the opposite a week later, 21 days later, the losers are not going to accept that result. Full stop,” Clement told the justices.

Mississippi Secretary of State Michael Watson, a Republican who is defending the state law, argues that federal law allows ballots cast by Election Day to be received later. In legal filings, attorneys for the secretary argue both legal and historical precedent support his position. States may decide that voters have made their final choices when ballots are submitted to state officials rather than when they’re received, according to Watson.

Ideological split?

On Monday, the justices appeared divided along ideological lines, with conservative justices skeptical of the grace periods and liberal justices more sympathetic. Conservatives hold a 6-3 majority on the court.

“It seems to me that we have a very long history of states having a variety of different ballot receipt deadlines, to include after Election Day,” said Justice Ketanji Brown Jackson, one of the court’s liberal members.

Mississippi Solicitor General Scott Stewart told the court the dispute is over whether Congress in an 1845 law blocked states from counting ballots cast by Election Day but received later. “No one challenged it until now,” Stewart said.

At least 725,000 ballots were postmarked by Election Day 2024 and arrived within a legally accepted post-election window, The New York Times has reported, citing election officials in 14 of 22 states and territories where late-arriving ballots were accepted that year.

About 30% of voters cast a mail ballot in 2024, according to data gathered by the U.S. Election Assistance Commission.

The 5th U.S. Circuit Court of Appeals ruled in October 2024 that federal law requires ballots to be received by Election Day. Trump likewise issued an executive order last year that attempted to require that mail ballots be received by the end of Election Day and to impose other election changes, but much of the order has been blocked by federal courts.

Rick Hasen, a professor and director of the Safeguarding Democracy Project at the University of California-Los Angeles School of Law, wrote on his Election Law Blog that it was clear from Monday’s arguments that the Supreme Court will be closely divided, “and the case could come out either way.” A decision is expected later in the spring or early summer.

Caleb Hays, chief policy counsel at the Center for Election Confidence, a conservative-leaning legal advocacy group that opposes ballot grace periods, said his organization was pleased that the justices appeared to pick up on the need for a clear end to the voting period. He also welcomed the justices raising the issue of recalling ballots when they are delivered through the mail or by a third-party service like FedEx.

“That brings into question some of the arguments we saw from (Mississippi) on a ballot being final when it is cast and cast includes when it is deposited in a mailbox,” Hays said in an interview.

As the legal challenge made its way through the courts over the past two years, some Republican-led states moved to eliminate their grace periods. Kansas, North Dakota, Ohio and Utah last year moved to require all or nearly all ballots to be in the hands of election officials on Election Day to count.

Illinois among the states

The states that continue to extend grace periods for ballots arriving after Election Day are Alaska, California, Illinois, Maryland, Massachusetts, Mississippi, Nevada, New Jersey, New York, Oregon, Texas, Virginia, Washington and West Virginia, along with the District of Columbia.

The case is separate from one involving U.S. Rep. Mike Bost, R-Illinois. He’s challenging Illinois’ election laws allowing ballots to be counted after Election Day, and the Supreme Court allowed his case to proceed after a lower court threw it out, saying he has standing because he is a candidate for office. That case went back to the lower courts, although the Mississippi case could ultimately be decided first.

Some local election officials have urged the Supreme Court to uphold ballot grace periods. A decision that strikes down state laws’ grace periods would increase the administrative burdens on many election officials, said a collection of election officials and local governments in California, Massachusetts and Washington in an amicus brief.

“(Grace periods) enable administrators in large and small jurisdictions to do their essential work in a timely and reasonable manner,” the brief says.

If the Supreme Court requires that ballots must arrive on or before Election Day, Clement suggested election officials would have enough time to prepare ahead of November. He said such a decision wouldn’t violate the Purcell principle, a Supreme Court doctrine holding that major changes to election policy and practice shouldn’t be made just before an election because voters could get confused.

The federal law at issue pertains to general elections, not primary elections, he noted — meaning the court’s decision would apply only to the November election.

“There’s plenty of time,” Clement said.

Stateline reporter Jonathan Shorman can be reached at jshorman@stateline.org.

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