Supreme Court appears skeptical of counting mail-in ballots that arrive after Election Day

Read our takeaways from today’s oral arguments here.

The Supreme Court’s conservative majority appeared dubious of state laws that allow the counting of mail ballots that arrive at election offices after Election Day as justices heard oral arguments in a challenge to Mississippi’s five-day grace period for mail ballots.

Over the course of more than two hours, justices raised an assortment of reasons why they saw those policies as problematic, seemingly embracing Republicans’ arguments that the state laws run afoul of statutes passed by Congress establishing Election Day in November for federal offices.

Here are the key takeaways:

Read more here.

The US Supreme Court in Washington, DC, on Monday.

The Supreme Court’s conservative majority on Monday appeared dubious of Mississippi’s and other state’s laws that count mail ballots that arrive at election offices within a certain period after Election Day.

Members the court’s right-wing raised an assortment of reasons why they saw those policies as problematic, seemingly embracing Republicans’ arguments that the state laws run afoul of statutes passed by Congress establishing Election Day in November for federal offices.

Several GOP-appointees on the court — including Justice Amy Coney Barrett, often seen as a swing voter — latched onto a line of questioning put forward by Justice Clarence Thomas early in oral arguments implying that permitting Mississippi’s law would also allow a voter have their ballot counted if by simply handed it to a neighbor by Election Day.

Justice Brett Kavanaugh also leaned into the arguments about grace periods for mail ballots. He raised the possibility that those regulations erode confidence in elections and pointed to the fact that the practice expanded greatly during Covid-19, suggesting that undermined the idea that it has a long established history.

The possiblity the post-Election Day deadlines could allow voters to “recall” ballots they had sent in the mail also animated the hostility of several justices.

There was some grappling among the court’s GOP-appointees around how the Republicans’ logic in the case would apply to early in-person voting, and other aspects of election process that have evolved since Congress passed the Election Day statutes.

The court’s liberal wing pushed back at the arguments made by those challenging Mississippi’s law. However, their attempts to frame the case as one requiring deference to states did not get buy-in from the court’s conservatives.

A decision is expected by July.

In orders issued before today’s arguments, the Supreme Court declined to hear the case of a citizen journalist who was arrested in 2017 for seeking information from a police department source in Laredo, Texas.

The decision leaves in place an appeals court ruling which found the police and city officials were entitled to immunity for their actions in the case.

Justice Sonia Sotomayor, the court’s senior liberal, wrote a dissent from the court’s decision to deny the case.

Priscilla Villarreal, who posts her reports on Facebook to more than 200,000 followers, was arrested under a Texas law that makes it a crime to seek non-public information with “intent to obtain a benefit.” Villarreal, whose case was later thrown out, wants to sue police and prosecutors for damages.

“They decided to jail her for basic journalism: asking a police officer for facts while reporting on two news stories, facts the officer freely shared,” Villarreal attorney’s told the Supreme Court in her latest appeal.

Villarreal came to the Supreme Court once before. Last year, the justices revived her lawsuit against police, tossing out an appeals court decision against her and ordering the lower court to look at her case again. The 5th US Circuit Court of Appeals did so and ruled against her again.

Villarreal sought to sue Laredo officials for civil rights violations, but her case was rejected because lower courts ruled those officials were entitled to qualified immunity, a legal doctrine that shields government employees from civil lawsuits unless their actions are obviously unconstitutional.

The group representing Villarreal said they were disappointed by the Supreme Court’s denial.

“The decision not to take Priscilla’s case only shines more light on the need for the court to revisit how qualified immunity applies in free speech cases, sooner rather than later,” said JT Morris, supervising senior attorney with the Foundation for Individual Rights and Expression.

Ballots must be received by Election Day in the states in yellow below.

Voters cast their ballots on the first day of early voting for the New York mayoral election, at a polling station in Brooklyn, on October 25, 2025.

When the majority of the court begins drafting its opinion on Mississippi’s ballots case, it’s clear that another popular practice will be firmly on their mind: Early voting.

Early voting isn’t at issue in the case, but the arguments over absentee ballots received after Election Day deal with how to define the word “election” and what, exactly, must happen on Election Day and what is permissible after that day — or before it.

And so it very well may have an impact on that practice.

“If Election Day is the voting and taking, then it has to be that day,” Roberts said, jumping into the argument with a question on early voting after remaining relatively quiet for more than an hour. “Maybe you’re not saying anything other than, ‘well, that’s different.’”

A majority of the court asked at least one question about early voting, and how to distinguish that from ballots arriving after the deadline. That questioning was led by Justice Elena Kagan, a member of the court’s liberal wing.

“You’re saying that we have to go back to the 19th century” to understand how Congress understood the term “election,” Kagan said. “Congress couldn’t have conceived of the kind of early voting that we have now.”

Most states have some form of early voting.

Solicitor General D. John Sauer, the Trump administration’s top attorney, told the justices that the administration agreed that “early voting is still acceptable.”

But when pressed on how to square that view the argument that ballots must be received by Election Day, Sauer acknowledged it was a “challenging question.”

Justice Brett Kavanaugh raised a key legal doctrine related to election cases about what a decision against the measure could mean for this year’s midterm elections.

The conservative justice wondered whether such a ruling would implicate the “Purcell principle,” a legal doctrine created by the Supreme Court two decades ago that says courts should avoid tinkering with how elections are carried out too close to an upcoming contest to avoid causing confusion among voters.

“If you were to prevail here and say our decision was issued in June, (are there any) Purcell issues with the states for the upcoming fall elections?” Kavanaugh asked Paul Clement, a lawyer pressing the high court to strike down the state law.

Clement downplayed any notion that a favorable ruling could create a chaotic situation later this year, saying that the Mississippi law at issue only applies to general elections, which would take place months after the court’s decision is handed down.

“I think June would give them plenty of time” to make the necessary changes, he said.

Litigants on both sides of election dispute often try to argue that Purcell works in their favor, but since the doctrine draws no clear lines, its application has varied over the years.

If members of the court’s right-wing majority have serious doubts about the Republicans’ arguments against mail ballot grace periods, they didn’t show it during when the GOP’s lawyer was at the lectern.

Paul Clement, who is representing the Republican National Committee, faced the most aggressive questioning from the court’s liberal wing. The court’s conservative wing mostly threw him softballs.

Justice Samuel Alito gave Clement the opportunity to respond to a Maryland law, cited by the Mississippi’s law defenders, that allowed for post-Election Day receipt in the early 1900s. Justice Brett Kavanaugh’s also queued up questions that allowed Clement to push back against Mississippi’s most central arguments.

Justice Amy Comey Barett had the toughest questions for Clement among the GOP-appointees on the court. She grilled him on how his side’s historical analysis of Civil War voting would state the ability to adjudicate a vote’s qualifications after Election Day. She brought up concerns raised by local election officials in Mississippi in a brief about how they often don’t finish verifying absentee ballot signatures for ballots that arrive by Election Day until after the election. In a later line of questioning, she also pressed Clement on whether his historical arguments would foreclose early voting as well.

Barrett was even tougher on Mississippi’s lawyer. So, it wasn’t clear whether her sharp questioning for the RNC signaled she was inclined to uphold the Mississippi law or if she was grappling with how to write an opinion in the RNC’s favor that dealt with those historical complications.

US Solicitor General D. John Sauer attends a press briefing held at the White House on February 20.

US Solicitor General D. John Sauer is arguing in support of the Republican National Committee as an “amicus” or a friend of the court.

The Trump administration is not a party, but it’s not unusual for the Supreme Court to hear the views of the Justice Department in major cases implicating federal law. Still Sauer has departed from the approach of his predecessors by frequently asking to weigh in on high-profile controversies without the Supreme Court first inviting the Justice Department’s input, as he did in this case.

Before he got the gig as the president’s top Supreme Court lawyer, Sauer represented Donald Trump in the 2024 case that established sweeping immunity for former presidents in prosecutions aimed at their actions while they were in the White House.

Sauer served for several years as the solicitor general for Missouri.

Both Mississippi and the Republican Party focus considerable effort wrangling over a 1997 precedent in which the Supreme Court unanimously shot down Louisiana’s highly unusual system of electing members of Congress.

In 1975, Louisiana adopted an “open primary” in which all congressional candidates appeared on a ballot in October — regardless of party affiliation. If a candidate received a majority of the vote, they were considered “elected.” Only if no candidate won a majority, would the state hold a run-off in November, which was essentially the general election.

The Supreme Court tossed out that approach in Foster v. Love, holding that the same federal law at issue in Monday’s case barred the state from effectively choosing members of Congress a month before the November general election.

The RNC argues Foster stands for the idea that that an election must be “concluded” and “consummated” on Election Day, under federal law, and that some action on behalf to state is necessary to accomplish that.

“Voters’ delivery is only half of the ‘combined action of voters and officials,’” the RNC told the Supreme Court. Election officials’ receipt is the other half. Foster requires both.”

Mississippi points out that the Supreme Court did not address in Foster what state action was necessary to consummate an election — it specifically left that question vague. The “final selection” of a candidate, the state says, happens when voters fill out their ballots, not when that ballot is received by election officials.

“The final selection is concluded and consummated — even if the final selection cannot be effectuated until ballots are received and counted,” Mississippi told the Supreme Court. “Nothing in Foster requires that ballots be received aspart of the election itself.”

A mail carrier in Pearl, Mississippi, in January 2020.

A wonky debate about the significance of voters being able to “recall” their ballots after they dropped them in the mailbox took on a major role and may prove pivotal in how the court decides the case.

Several conservative justices, including Amy Coney Barrett and Neil Gorsuch, hammered Mississippi’s attorney on the point.

The issue is important because Mississippi argues that the selection of a candidate has occurred when a voter fills out their ballot and puts it in the mail.
But, the conservatives asked, how can a ballot be final if a voter can recall their mailing before it reaches the election office?

Gorsuch offered a hypothetical involving a candidate who becomes embroiled in a sex scandal in the final days of a campaign and a large number of voters attempt to recall their mail-in ballots. In that circumstance, Gorsuch asked, how can the submission of the ballots be considered final?

“Not farfetched, I think,” Gorsuch said.

Stewart argued that Mississippi doesn’t allow voters to recall their mailed ballots, but withered under scrutiny from Gorsuch and Barrett about how that works — or doesn’t — in practice.

It’s not clear how often a voter attempts to stop a mailed ballot they have already shipped, but it is likely a small number.

Still, Barrett repeatedly returned to the question of finality and whether it undercut how Mississippi is framing when an “election” takes place.

“It’s about your definition of ‘election,’” Barrett said.

Justice Ketanji Brown Jackson tried to throw Mississippi Solicitor General Scott Stewart a lifeline after he was pummeled by questions from the court’s conservatives suggesting that post-Election Day mail ballot deadlines were problematic.

She pointed to the focus by the court’s right wing on the issue of ballots that voters tried to recall once they were in the mail.

“I’m a little confused about those kinds of policy questions, and I guess, I think that the Constitution’s allocation of responsibility here actually makes this case about who decides,” she said. The Constitution generally gives states the job of running election but says Congress can put certain guardrails on voting rules.

Jackson referenced a line of inquiry Justice Samuel Alito had earlier in the arguments, in which Alito said Mississippi position was requiring “difficult line drawing” problems, around whether mail ballots need to be postmarked by Election Day, whether they can be recalled by, and how long they can be accepted.

“The question, I think, is whether Congress has precluded the states from making those calls, drawing those lines, and your position, as I understand it, is, no,” Jackson said, “that the scantness of Election Day in the federal statutes, actually is appointed your favor, because it indicates that Congress was leaving it to the states to draw the various lines that might arise in this circumstance.”

Conservative Justices Samuel Alito and Brett Kavanaugh both suggested Mississippi’s law could erode confidence in elections by making it easier for fraudulent votes to be cast or for voters to assume fraud occurred when a contest’s outcome swings days after Election Day once late-arriving ballots are counted.

“Do you think it’s legitimate for us to take into account Congress’s desire, Congress’s passage of the Election Day statutes for the purpose of combating fraud or the appearance of fraud?” Alito asked, referring to federal laws setting some key elections on one particular day.

Kavanaugh picked up on that point later, asking whether Mississippi was concerned about election confidence taking a hit because of its permissive law.

“If the apparent winner the morning after the election ends up losing due to late arriving ballots, charges of a rigged election could explode,” Kavanaugh, an appointee of President Donald Trump, said.

Such claims of a “stolen” election were amplified by Trump and his allies in 2020 as election officials continued counting votes, including ones cast through the mail, days after Election Day.

But Mississippi Solicitor General Scott Stewart told the two justices on Monday that his foes in the case “haven’t cited a single example of fraud from post-Election Day ballot receipts.”

“I don’t know that people have that particular concern,” Stewart said. “I think obviously people can be unhappy when a result flips.”

Attorney Paul Clement leaves the US Supreme Court on January 21, the day justices considered President Donald Trump's effort to fire Federal Reserve Governor Lisa Cook.

Paul Clement — a private attorney who has argued several high-profile cases before the court, often favoring right-wing causes — is representing the Republican National Committee in today’s arguments.

He served as US Solicitor General during the George W. Bush administration.

He is perhaps best known for his victories in Second Amendment cases, but has also argued major cases opposing gay rights, the Affordable Care Act and redistricting reform.

However, he has also been hired to represent opponents of the Trump administration, arguing earlier this year on behalf of former Federal Reserve Board member Lisa Cook in her challenge to her firing by Trump.

Justice Brett Kavanaugh focused on the way that the Covid-19 pandemic led to a wider embrace of post-Election Day mail ballot deadlines, suggesting he was dubious of seeing the practice as having a long established history.

“It only become widespread to allow it to be mailed by election day in more recent years … the predominate approach was to require it to be received by election day,” Kavanaugh said. “How are we supposed to think about that?”

Mississippi moved its deadline back in 2020, a move that Kavanaugh seemed to sanction by calling it a “policy choice” in a concurrence he wrote that year.

During Monday’s arguments, he seemed skeptical, asking Stewart other questions suggesting there were downsides to allowing grace periods.

Mississippi is partially relying on a Covid-era case in which the court blocked a lower court order that would have let voters put their absentee ballots in the mail after Wisconsin’s April primary day. The order the Supreme Court wrote in the case, Mississippi says now, shows that the justices saw a distinction between allowing voting after an Election Day and allowing receipt of a ballot after an election – with the former, and not the latter, being the fundamental step that effectuates an election.

How voting was handled for a soldiers in the Civil War was a focus of the 5th Circuit ruling against Mississippi’s policies and an issue that Justice Sonia Sotomayor raised early on Monday. The appellate panel wrote that absentee voting arose during Civil War and said those practices were relevant because they were likely what Congress had in mind when it passed the initial Election Day statute roughly two decades later.

The 5th Circuit described those soldiers as being allowed to vote absentee either by submitting ballots in ballot boxes that were brought by election officials to the battlefield, or by using proxies who brought the ballots to the soldiers’ home districts.

Both methods show that the process of voting was completed not when the soldier finished filling in his ballot, but rather when it was received, the panel said, concluding ” the practice of absentee voting that arose during the Civil War demonstrates that the election concludes when all ballots are received.”

Mississippi and others disagree with how the 5th Circuit majority used Civil War history. A judge who dissented from the panel’s decision said the opinion “oversimplifies” the history, and ignores that at least three states counted ballots that were submitted by soldiers to military personnel on the field and were delivered to precincts after Election Day.

Additionally, Mississippi argued in its brief that the 5th Circuit’s logic cast doubt on all the innovations states have made in election policy since the Civil War, including the expansion of absentee voting to civilians and the embrace of the secret ballot.

Mail-in ballots await processing at the Los Angeles County Registrar Recorders' mail-in ballot processing center in Pomona, California, in October 2020.

Justice Clarence Thomas had questions for Mississippi’s attorney suggesting he’s skeptical of the state’s mail ballot grace period — and the line of inquiry was picked up Justice Amy Coney Barrett, a key swing vote on the conservative court, and Justice Neil Gorsuch.

Thomas asked Mississippi Solicitor General Scott Stewart if an election is finalized when a voter hands off his ballot to a neighbor to be turned in. The implication was that if Mississippi’s law was permissible, then there could be no limits on how and when votes eventually made their way to election officials.

Thomas did not appear satisfied when Stewart tried to make a distinction between Mississippi’s law, which requires ballots have a postmark by Election Day, and the hypothetical from the conservate justice.

Barrett pressed Stewart on the distinction too.

“I don’t understand why Mississippi’s definition in the next case would preclude a state from adopting a law along the lines of the one that Justice Thomas is proposing,” she said. “For example, if I have someone in my neighborhood, in my HOA, who says, ‘Listen, I’m going to take everybody’s votes.’ And what if the state said ‘that’s fine. If you’ve cast your final vote and you’ve, you know, you’ve designated someone to carry your vote, too, as long as it gets to the ballot box five days after Election Day, it’s fine.’”

Lurking in the background of this case is a question about what a decision about ballots received after Election Day will mean for popular early voting programs.

Chief Justice John Roberts, a key vote in the case, went directly to that issue in an early question. Both sides say their theories wouldn’t affect early voting, and both sides claim their opponent’s theories might.

Roberts appeared to be testing Mississippi’s theory that voters can cast and submit their ballots on days other than Election Day.

“Does your logic require a different consideration” for ballots cast before the election, Roberts pressed the attorney for Mississippi, Scott Stewart. “Is there any limit to that? Fill out a ballot…and drop it off two weeks before?”

Stewart said that a decision upholding Mississippi’s law wouldn’t affect ballots received before Election Day.

Scott Stewart in court in Jackson, Mississippi, in July 2022.

Scott Stewart, Mississippi’s top appellate attorney, is leading off oral arguments, arguing that nothing in federal law bars states from receiving properly cast mail ballots after Election Day.

The last time Stewart appeared at the Supreme Court, the justices listened. It was Stewart who argued in 2021 for overturning Roe v. Wade in a case involving Mississippi’s ban on abortion after 15 weeks of pregnancy.

Six months after that argument, five conservative justices voted to do just that.

It was Stewart’s decision to take a case that challenged the Mississippi’s law and push for the overturning of Roe, rather than seeking a more incremental win. In the years since that case, Stewart has repeatedly said in talks that virtually everyone advised him against targeting the landmark 1973 precedent.

“There’s magic in boldness,” Stewart said a Federalist Society conference last year. “When you stand up for the right thing and you do it in the right way, impossible things can become possible.”

Stewart clerked for conservative Justice Clarence Thomas and received his law degree from Stanford. He was appointed as Mississippi’s solicitor general in 2021. Before joining the state, Stewart worked in the Justice Department during President Donald Trump’s first administration, including in the Office of Legal Counsel.

The US Supreme Court is seen on February 20.

The Supreme Court will hear arguments today in a case concerning states’ ability to count mail-in ballots received after Election Day, taking up a Republican-led lawsuit that could affect election laws in more than a dozen states across the country.

Fourteen states allow regular mail ballots to be accepted after Election Day, including presidential battleground Nevada. Most of the nation’s battleground states – including Michigan, Pennsylvania and Wisconsin – require ballots to be received by Election Day.

Other states accept military ballots after Election Day.

A Mississippi law, enacted during the Covid-19 pandemic, allows ballots to be received up to five days late, so long as they are postmarked by Election Day. The Republican National Committee and others sued over that law, claiming the provision violated a federal law that fixes the date for the election.

Read more about the case and mail-in voting issues.