The Supreme Court is skeptical about allowing states to count mail-in ballots received after Election Day

Conservative justices on the U.S. Supreme Court expressed skepticism Monday about the validity of mail-in ballots received after Election Day, in a case that could potentially affect hundreds of thousands of voters in the upcoming midterm elections.

The Supreme Court heard arguments on whether federal law overrides a Mississippi law that requires mail-in ballots 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 extending a “grace period” for ballots received in the mail after polls close.

Several conservative justices raised concerns about admitting ballots after Election Day, including whether voters could recall their ballots after they were mailed but before they arrived at election offices. Judge Brett Kavanaugh questioned whether late-arriving ballots could threaten election confidence.

“‘The longer after Election Day that significant changes in the vote count occur, the greater the risk that the losing side will declare that the election was stolen,'” Kavanaugh said, citing an analysis by a New York University law professor.

The case comes before the Supreme Court at a time when there are broader attacks on mail-in voting. Four Republican-led states eliminated their grace periods for voting last year. And Congress is considering proposals that would restrict mail-in voting, while the U.S. Senate is playing a lengthy debate over a bill pushed by President Donald Trump that would impose sweeping novel voter restrictions across the country. This 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 that a longstanding federal law that sets the Tuesday after the first Monday in November as election day for federal offices overrides state laws that allow ballots cast by Election Day but received later to be counted.

Paul Clement, a lawyer for the Republican National Committee, argued that the prospect that the outcome of an election could change because ballots arrive after Election Day is unacceptable for losing candidates. After the 2020 election, President Donald Trump asked election officials not to count ballots received after Election Day. States continued to count ballots.

“If you have an election and late-arriving ballots are taken into account in the election in a way that means that what everyone thought was the result on election day is the opposite a week later, 21 days later, the losers are not going to accept that result. Period,” Clement told the justices.

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Mississippi Secretary of State Michael Watson, a Republican who defends the state law, argues that federal law allows ballots cast by Election Day to be received later. In court filings, the secretary’s lawyers argue that both legal and historical precedent support his position. Watson said states can decide that voters have made their final decision when ballots are presented to state officials, rather than when they receive them.

On Monday, the justices appeared ideologically divided, with conservative justices skeptical of the reprieves and liberal justices more sympathetic. The conservatives have a 6:3 majority in the court.

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

Mississippi Attorney General Scott Stewart told the court that the dispute centers on whether Congress used an 1845 law to prevent states from counting ballots cast by Election Day but received later. “Nobody has challenged it yet,” Stewart said.

At least 725,000 ballots were postmarked by Election Day 2024 and arrived within a legally allowed window after the election, according to the New York Times has reportedciting election officials in 14 of 22 states and territories that accepted behind schedule ballots this year.

According to the U.S. Election Assistance Commission, about 30% of voters cast an absentee ballot in 2024.

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

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

Caleb Hays, senior policy counsel at the Center for Election Confidence, a conservative-leaning legal advocacy group that opposes election deadlines, said his organization was pleased that the justices appeared to recognize the need for a clear end to the election deadline. He also applauded the justices for addressing the issue of revoking ballots if they were delivered by mail or through a third-party provider such as FedEx.

“That challenges some of the arguments we’ve seen from (Mississippi) that a ballot is final when it’s cast, and the ballot is valid even if it’s put 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 have taken steps to eliminate their grace periods. Kansas, North Dakota, Ohio and Utah decided last year that all or nearly all ballots must be in the hands of election officials on Election Day in order to be counted.

States that continue to extend grace periods for ballots received after Election Day include Alaska, California, Illinois, Maryland, Massachusetts, Mississippi, Nevada, New Jersey, New York, Oregon, Texas, Virginia, Washington and West Virginia, as well as the District of Columbia.

Some local election officials have asked the Supreme Court to respect election deadlines. A decision striking down state law grace periods would raise administrative burdens for many election officials, a group of election officials and local governments in California, Massachusetts and Washington said in an amicus brief.

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

If the Supreme Court mandates that ballots arrive on or before Election Day, Clement suggested election officials would have plenty of time to prepare before November. He said such a decision would not violate the Purcell Principle, a Supreme Court doctrine that says major changes to electoral policies and practices should not be made immediately before an election because doing so could confuse voters.

The federal law in question applies to general elections, not primaries, he noted — meaning the court’s decision would apply only to the November election.

“There’s enough time,” Clement said.

Stateline reporter Jonathan Shorman available at jshorman@stateline.org.