The U.S. Supreme Court heard arguments on Monday in Mississippi’s defense of a state law challenged by Republicans that allows a five-day grace period for mail-in ballots received after Election Day to be counted in a case that could lead to stricter voting rules around the country.
Republican President Donald Trump’s administration is backing the challenge to Mississippi’s law, which permits mail-in ballots sent by certain voters to be counted if they were postmarked on or before Election Day but received up to five business days after a federal election. Absentee voting by mail is limited to a few categories of voters under the law including elderly people, the disabled and those living away from home.
Mississippi appealed after a lower court deemed its mail-in ballot law illegal. The dispute centered on whether federal laws setting Election Day for federal elections preempt state laws in various states that allow ballots to be received after that day.
The Supreme Court has a 6-3 conservative majority. Questions posed by some of the conservative justices during the arguments appeared to express concern over mail-in ballot practices more broadly, beyond grace periods, including who can receive a ballot, whether it must be postmarked and even whether states may allow mailed-in ballots to be recalled by the voter.
Trump last year vowed to end the use of mail-in ballots nationwide before the 2026 U.S. midterm elections, a move that likely would disproportionately benefit his party given that Democratic voters traditionally have been more likely to use mail-in ballots than Republican voters.
Legislation now being considered by Congress would put new restrictions on mail-in ballots involving requirements for certain government-issued photo identification. Trump, however, has urged Senate Republicans to expand the proposal to include a sweeping ban on mail-in voting, with limited exceptions for military personnel and certain others.
Republicans have taken a skeptical view toward mail-in ballots. Trump has sought to cast doubt on the security of these ballots, although evidence of voter fraud is rare. Trump has continued to make false claims of widespread voting fraud in the 2020 presidential election that he lost to Democrat Joe Biden.
About 30 states and the District of Columbia accept at least some ballots that are postmarked on or before Election Day but received afterward.
‘THERE’S A CONTRADICTION’
During the arguments, conservative Justice Neil Gorsuch pressed Scott Stewart, the lawyer arguing for Mississippi, to clarify his view of when a ballot has been delivered to the state, including who must receive the ballot.
“You say that the federal statute does require voters to submit their ballots to election officials on Election Day, must be cast by Election Day. … But at the same time, you say, actually, it doesn’t have to be submitted to an election official. It just has to be submitted to a common carrier. And there’s a contradiction there,” Gorsuch said.
The Republican National Committee, the Mississippi Republican Party and other plaintiffs filed a lawsuit in 2024 seeking to invalidate Mississippi’s law.
Liberal Justice Elena Kagan suggested to Paul Clement, the lawyer who argued on behalf of the challengers to Mississippi’s law, that the structure of key federal election law seemed to reflect a congressional view that states have flexibility in setting ballot-receipt deadlines.
It seems that Congress believed that setting ballot-receipt deadlines “was something that was a state function,” Kagan said. “And so they wrote the statutes this way, where, with respect to all elections, the states were setting their own receipt deadlines.”
Conservative Justice Samuel Alito asked Stewart to address concerns that a critical mass of mail-in ballots arriving after Election Day could undermine confidence in election integrity. Trump and his supporters have made this argument as part of their effort to cast doubt on the integrity of the 2020 election.
“Do you think it’s legitimate for us to take into account Congress’ passage of Election Day statutes for the purpose of combating fraud or the appearance of fraud?” Alito asked. “Some of the briefs (submitted to the Supreme Court in the case) have argued that confidence in election outcomes can be seriously undermined if the apparent outcome of the election on the day after the polls close is radically flipped by the acceptance later of a big stash of ballots that flip the election.”
Conservative Justice Brett Kavanaugh asked Stewart to address whether historical practice favors a stricter deadline.
“The other side makes a point … that it only became widespread to allow it to be mailed by Election Day in more recent years, and that the predominant approach was to require receipt by Election Day throughout the historical practice you cite until very recently,” Kavanaugh said. “How are we supposed to think about that?”
During the first year of the COVID pandemic, the Republican-controlled Mississippi legislature in 2020 passed the law on a bipartisan basis.
The New Orleans-based 5th U.S. Circuit Court of Appeals in 2024 ruled in favor of the Republican challengers.
Though the 5th Circuit’s action applied only in the three states where the regional federal appeals court has jurisdiction – Mississippi, Louisiana and Texas – it called into question the voting practices in the other states with similar mail-in ballot policies.
