Mail-Ballot Deadline Clash Draws Review From Supreme Court

The US Supreme Court agreed to decide whether federal ballots can be counted if they arrive after Election Day in a politically charged clash that will decide the fate of about 30 state laws in advance of next year’s pivotal midterm vote.

The justices said Monday they will review a federal appeals court decision invalidating a Mississippi law that lets mail ballots be counted as many as five business days after Election Day. The Republican Party is challenging the measure as being incompatible with federal law.

The rules governing mail ballots have been a recurring issue in recent elections, with Republicans generally arguing for strict deadlines and Democrats for more flexibility. The new case, likely to be resolved by July, gives the Supreme Court a chance to clear up a core legal question without the specter of a particular election hanging in the balance.

Mississippi was among a number of states that extended their ballot-receipt deadlines for the 2020 election, which took place during the pandemic, and the state later made the change permanent. Mississippi’s five-day rule applies as long as ballots are postmarked by Election Day.

The 5th US Circuit Court of Appeals said the measure runs afoul of federal laws that set the Tuesday after the first Monday in November as the “day for the election.” A three-judge panel said the phrase establishes a deadline by which “ballots must be both cast by voters and received by state officials.” A larger group of judges then voted 10-5 not to reconsider the case.

The case puts two of Mississippi’s Republican leaders in the unusual position of arguing against their own party. Secretary of State Michael Watson and Attorney General Lynn Fitch are defending the law, and they urged the Supreme Court to take up their appeal and clear up the legal uncertainty.

The 5th Circuit ruling “invites nationwide litigation against laws in most states – risking chaos in the next federal elections, particularly given the tendency of election law claims to spur last-minute lawsuits,” Watson and Fitch argued in their appeal.

A group led by the Republican National Committee told the justices that the 5th Circuit reached the right conclusion. A post-election receipt deadline “extends ‘the election’ beyond the ‘day’ set by Congress,” the RNC argued.

The District of Columbia and 19 states represented by Democratic attorneys general are backing Mississippi. “The federal Election Day statutes say nothing about Mississippi’s and other states’ laws that regulate receiving and counting ballots timely cast by that designated day,” they argued in a friend-of-the-court brief.

Voting by mail has surged in recent years. The US Postal Service says it handled more than 99 million ballots for the 2024 election.

About 30 states allow at least some ballots to arrive after Election Day, with some doing so only for members of the military or overseas voters.

The Supreme Court dealt with ballot-receipt deadlines in other legal contexts in the run-up and aftermath to the 2020 election. In an October 2020 decision involving Wisconsin, Justice Brett Kavanaugh said that states had leeway to decide whether to extend their deadlines in response to the pandemic.

“The variation in state responses reflects our constitutional system of federalism,” Kavanaugh wrote. “Different state legislatures may make different choices.”

But Kavanaugh also said states that set Election Day as a firm deadline have “important reasons” for doing so. “Those states want to avoid the 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,” he wrote.

The case is Watson v. Republican National Committee, 24-1260.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Steve Stroth

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