Supreme Court to decide if ballots must be received by Election Day

(CN) — The U.S. Supreme Court agreed Monday to decide whether a state law can allow Mississippi to count ballots received by election officials within five business days after federal Election Day.

The justices decided to take on the case after the Fifth Circuit held that federal laws preempt Mississippi’s law. Under its interpretation of federal Election Day statutes, it found federal “election” day to be, “the day by which ballots must be both cast by voters and received by state officials” and that Mississippi law conflicts with those statutes because it allows ballots to be received after Election Day.

In his petition for review, Mississippi Secretary of State Michael Watson asks the justices to overturn this ruling. He argues it not only defies statutory text, but that if left to stand “will have destabilizing nationwide ramifications.”

Watson claims that because the votes were cast and ballots were submitted by election day, they can still be counted by the state under federal law.

“As a matter of plain meaning, an ‘election’ is the conclusive choice of an officer,” Watson wrote.

“Voters make that choice by casting — marking and submitting — their ballots by Election Day. The election has then occurred, even if election officials do not receive all ballots by that day,” he added.

Federal law sets the Tuesday after the first Monday in November in certain years as the “Election” Day for federal offices.

President Donald Trump issued an executive order in March to overhaul United States elections by requiring documentary proof of citizenship and insisting that all ballots be received by Election Day.

He has targeted mail-in voting specifically, which has surged in use after the Covid-19 pandemic. Trump has repeatedly and baselessly claimed that voting by mail is rife with fraud — in reality, voter fraud is exceedingly rare — hence his demand to limit the practice in his order.

States and other groups have pushed back in court.

Like all other states, Mississippi requires that ballots for federal offices be cast — marked and submitted to election officials — by that day.

And like most other states, Mississippi allows mail-in absentee ballots, mailed by Election Day, to be counted if they are received by election officials soon after.

With less than 18 months before the next federal election, Watson argues the appeals court’s ruling will invite nationwide litigation against laws in most states, risking election chaos and confusion.

“The stakes are high: Ballots cast by — but received after — Election Day can swing close races and change the course of the country. And this case is an excellent vehicle,” Watson wrote.

U.S. Circuit Judge James Graves, a Barack Obama appointee, dissented in an opinion joined by four other judges. He maintained that an election is defined as only ballot casting, not ballot receipt, and that this case raises a question of “exceptional importance.”

The Republican National Committee, the Mississippi Republican Party, the Libertarian Party of Mississippi and two state voters sued Watson in 2024. They argue the ruling in their favor is supported by history, with states ensuring that the ballot box closed on Election Day for more than 150 years.

As an increasing number of states have permitted some ballots to be received later, they claim there is a risk of “chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after Election Day and potentially flip the results of an election.”

In their brief to the high court, the groups argue that while the law gives states the authority to determine the “times, places and manner” of holding federal elections, Congress may at any time alter such regulations over timing.

Vet Voice Foundation, a veteran advocacy group, and Mississippi Alliance for Retired Americans intervened to defend Mississippi’s law. They noted that a nearly unanimous bipartisan majority of the Mississippi Legislature enacted the challenged Ballot Receipt Deadline in 2020. And unlike many states, Mississippi limits absentee voting to just the elderly, the disabled, those away from their home county on Election Day and military servicemembers.

“The recent trend of states extending ballot receipt deadlines by days — and sometimes even weeks — after federal Election Day undermines free and fair elections,” Russell Nobile, a Judicial Watch attorney representing the Mississippi Libertarian Party, told Courthouse News.

“We believe SCOTUS will affirm our victory at the Fifth Circuit and put an end to this new practice, which violates federal law,” he said.

Mississippi did not immediately respond to a request for comment.

The justices did not say when they will hear arguments in the case.

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