SCOTUS Leary About States Accepting Post-Election Day Ballots

The U.S. Supreme Court appeared skeptical on Monday about the legality of state laws permitting election officials to accept mail-in ballots after Election Day.

The moment came during oral arguments for Watson v. RNC, which deals with a challenge to a Mississippi law authorizing absentee ballots to be accepted up to five days after Election Day so long as they are postmarked before or on the day of the contest. Mississippi appealed to the high court after the 5th Circuit Court determined that the state statute is preempted by federal laws designating an official Election Day.

Mississippi Solicitor General Scott Stewart opened Monday’s discussion by arguing that the federal Election Day statutes “adopt a simple rule: States must make a final choice of officers by Election Day.” He contended that they do not prohibit states from accepting ballots after Election Day so long as they are postmarked before or on that day.

Several of the court’s Republican appointees immediately pushed back on those claims.

Associate Justice Clarence Thomas kicked off the questioning by probing Stewart on his seemingly conflicting positions that the voter’s choice must “be made by Election Day” and “on Election Day.” He further pressed Stewart on when Mississippi considers an elector’s vote to be “final” — either when it’s been placed in the mail or formally received by the election official.

Piggybacking off Thomas’ hypothetical about a voter giving his “mail-in ballot to [his] neighbor” for it to be delivered, Associate Justice Amy Coney Barrett similarly attempted to pin down Stewart on the issue. She pushed back on the Mississippi solicitor general’s claim that “submission [of a ballot] to mail or common carrier is … different … than, say, submitting it to a relative … or sort of a neighbor in that way.”

“What’s the difference? They’re not government officials,” Barrett said.

Stewart also endured tough questioning from Associate Justice Neil Gorsuch. The Trump appointee hammered the Magnolia State’s lawyer on an apparent “contradiction” in his argument that the federal Election Day statutes “require voters to submit their ballots to election officials on Election Day, must be cast by Election Day … and that the Election Day is the day to conclude and consummate the election through a final selection.”

“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.

[READ: Supreme Court Gears Up To Decide If Elections End On Election Day]

Associate Justices Samuel Alito and Brett Kavanaugh similarly had their fair share of tough questions for Stewart.

Alito underscored how America doesn’t “have Election Day anymore,” but “election month or … election months.” He also probed Stewart on whether it would be “legitimate” for the Supreme Court to take into account “Congress’s passage of the Election Day statutes for the purpose of combatting fraud or the appearance of fraud,” noting how “some of the briefs 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.”

Meanwhile, Kavanaugh tackled the history of states accepting late-arriving ballots by referencing a key point raised by Mississippi’s opponents — that the practice “only became widespread … in more recent years and that the predominant approach was to require receipt by Election Day … until very recently.” Much like Alito, he also referred to concerns among those who “have said that late-arriving ballots open up a risk of what might destabilize the election results.”

“Is that something we should be thinking about? Confidence in the election process? … Just curious how we factor that in here,” Kavanaugh said.

Associate Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, on the other hand, appeared more inclined to side with Mississippi in the case. The three Democrat appointees all interrogated RNC lawyer Paul Clement about his argument that “text, precedent, history, and common sense” favor his client’s position that all ballots must be received by Election Day.

In contrast to his colleagues, Chief Justice John Roberts remained relatively mum throughout oral arguments. The chief justice’s rare interjections included a question to Stewart about the definition of “day” as it relates to Election Day and voting and a follow-up query about early voting to U.S. Solicitor General John Sauer, who argued in the RNC’s favor on behalf of the Trump administration.

A decision in the case is not expected until later in the court’s 2025-2026 term, which is slated to end in late June.

Shawn Fleetwood is a staff writer for The Federalist and a graduate of the University of Mary Washington. He is a co-recipient of the 2025 Dao Prize for Excellence in Investigative Journalism. His work has been featured in numerous outlets, including RealClearPolitics and RealClearHealth. Follow him on Twitter @ShawnFleetwood