By: Jonathan Shorman, States Newsroom
The U.S. Supreme Court ruled Monday that states can count mail-in ballots that arrive after Election Day, a blow to the Trump administration and some Republican states that had urged the justices to require all ballots to arrive by the close of polls.
In a 5-4 decision, the court found that federal law does not prevent states from accepting late-arriving ballots. The ruling is a victory for Democrats and voting rights advocates, who had said setting a hard, Election Day deadline for ballot arrival would risk disenfranchising voters amid fears of deteriorating mail service.
The case, RNC vs. Watson, centered 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. Thirteen states have similar laws, which extend a “grace period” to ballots that arrive through the mail after polls close.
Justice Amy Coney Barrett, writing for the majority, said that federal law didn’t preempt the state law because elections represent when voters make a decision, which must be done on or before Election Day. Voters who cast their ballot by mail have made a decision by Election Day, Barrett reasoned.
“The electorate’s choice is made when voting is complete, not when ballots are received,” Barrett wrote.
Barrett cautioned that the decision rested on the interpretation of federal law, not the U.S. Constitution. She noted that the court was not considering the scope of Congress’ authority to regulate federal elections — suggesting that if Congress passes a nationwide ballot arrival deadline that the justices might uphold such a law.
Barrett was joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.
Justice Samuel Alito dissented, joined by Justices Clarence Thomas and Neil Gorsuch. Justice Brett Kavanaugh joined part of the dissent.
“If ballots received after election day are added to the set of ballots that dictate the election’s outcome, the electorate’s choice does not occur on election day, and the federal election-day statutes are violated,” Alito wrote.
States with grace periods
In addition to Mississippi, other states with some form of grace period include Alaska, California, Illinois, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Texas, Virginia, Washington and West Virginia.
David Becker, executive director of the nonpartisan Center for Election Innovation & Research, called the Supreme Court decision a win for these states, as well as 30 states that accept military and overseas ballots delivered after Election Day.
“This is a victory for all the states and for all those who respect the will of the Founders, who ensured the security of our elections by giving the power to run those elections to the states — not to one person sitting in Washington, DC,” Becker said in a statement.
Some local election officials had warned that requiring all ballots to be received by the close of polls would burden their offices as they try to quickly warn voters about the change just months before the midterms. More ballot drop boxes that let voters keep their ballots out of the mail could help, they say, but also cost money.
“Ultimately, the voters may be harmed as well,” election officials in California, Massachusetts, Oregon and Washington wrote in a court brief, warning that some ballots may not be received in time, “despite best efforts by careful and proactive administrators and local governments.”
But some Republican secretaries of state had urged the justices to strike down “grace period” laws. Louisiana Secretary of State Nancy Landry and Wyoming Secretary of State Chuck Gray wrote in a court brief that an Election Day deadline “provides the bright-line rule that effective election administration demands.”
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.
Overall, about 30% of voters cast a mail ballot in 2024, according to data gathered by the U.S. Election Assistance Commission.
RNC challenged law
The Republican National Committee challenged the Mississippi law, which was defended by Mississippi Republican Secretary of State Michael Watson. The RNC argued a longstanding federal law that sets the Tuesday after the first Monday in November as Election Day for federal offices preempted state laws that allow ballots cast by Election Day, but received later, to count.
The 5th U.S. Circuit Court of Appeals ruled in October 2024 that federal law requires ballots to be received by Election Day. President Donald Trump last year also unilaterally attempted to require mail ballots to be received by the end of Election Day in a sweeping executive order on elections. Much of that order was blocked in federal court.
The Supreme Court “rejected the RNC’s radical attempt to rewrite election laws in a way that would have resulted in the rejection of hundreds of thousands of ballots and the disenfranchisement of voters nationwide through no fault of their own,” Elisabeth Frost, litigation chair at Elias Law Group, said in a statement.
Elias Law Group represented two nonprofit voting rights groups, Vet Voice Foundation and the Mississippi Alliance for Retired Americans, that had intervened as defendants in the case.
The Supreme Court issued Monday’s decision against a backdrop of uncertainty surrounding mail ballots. Trump signed an executive order in March that would restrict voting by mail by requiring states to provide lists of possible mail ballot voters to the U.S. Postal Service in advance. A federal judge recently blocked major portions of the order, triggering a near-certain appeal.
Republican National Committee chairman Joe Gruters accused Democrats of inviting chaos by allowing elections to “drag on” for days and weeks after ballots are cast. He said Republicans wouldn’t be deterred by the decision.
“If we want fair and secure elections, Election Day should mean exactly what it says, which is why this decision makes it even more imperative that Congress pass the SAVE America Act,” Gruters said in a statement, referring to restrictive voter legislation pushed by Trump that lacks the votes to pass the U.S. Senate.
Trump said the decision was a “tremendous loss” in a social media post and again urged passage of the SAVE America Act.
Paul Clement, an attorney for the Republican National Committee, said during oral arguments at the Supreme Court in March 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, but 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.
Attorneys for Watson argued that both legal and historical precedent supported 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.
Watson didn’t immediately respond to a request for comment.
This is a developing report that will be updated.
