In a case with major implications for voting access, the U.S. Supreme Court will soon decide whether a mail-in ballot must be received by Election Day to count, or if it merely must be sent by then.
A ruling for the Republican claim that states must reject ballots that arrive after Election Day would upend mail voting, potentially disenfranchising large numbers of voters.
It would be cheered by President Donald Trump, whose March executive order tried to ban ballots that arrive after Election Day. After the GOP’s shellacking in elections last week, Trump reiterated his call to outlaw mail voting entirely.
The court agreed Monday to hear arguments in RNC v. Wetzel, a lawsuit challenging Mississippi’s law allowing a five-day grace period for late-arriving ballots mailed by Election Day.
The justices’ decision could strike down or uphold laws in 16 states (and Washington D.C.) allowing late-arriving ballots postmarked on or before Election Day to be counted if they arrive within a set grace period.
Several states created or lengthened their grace periods in response to the dramatic surge in mail voting spurred by the Covid crisis of 2020. If the Supreme Court decides that a vote must be cast and delivered by Election Day to be valid, it could lead to many thousands of rejected ballots across the country.
Already in 2024, nearly 104,000 ballots were rejected for arriving too late, per federal data.
And, as Democracy Docket recently reported, vote-by-mail advocates worry that new U.S. Postal Service pickup standards will delay ballot delivery in much of the nation, potentially disenfranchising millions more voters.
Mail voting advocates cheered the Supreme Court’s decision to hear the case, hoping the justices will overturn the 5th Circuit’s “upside-down” opinion, as Barbara Smith Warner, the executive director of the National Vote At Home Institute, called it.
“The idea that a ballot that is postmarked on or by Election Day and received afterwards… is like voting after Election Day? That is ridiculous,” said Warner.
Warner said she’s hopeful the justices will reverse the 5th Circuit’s ruling — but if instead they uphold it and apply it nationwide, it would further erode faith in democracy and the legal system.
“That feels like another indication that they’ve given up their willingness to actually support and enforce the Constitution,” Warner said.
“We really hope that the Supreme Court takes the responsibility seriously to make sure that every voter can use their power,” said Alexia Kemerling, director of accessible democracy at the American Association of People with Disabilities. “The millions of voters with disabilities who cannot vote in person or voters who are overseas who cannot vote in person — this is their only way to participate in the system. They should not be disenfranchised for the ways that our system moves slowly.”
Anti-voting activists also welcomed the news Monday.
“Counting ballots received after Election Day not only violates federal law but encourages voter fraud and undermines voter confidence,” said Tom Fitton, president of Judicial Watch, a right-wing organization that filed an amicus brief supporting the 5th Circuit’s decision. “The Supreme Court should uphold the historic decision by the Fifth Circuit that sensibly concluded that counting ballots received after Election Day is unlawful.”
On X, Assistant Attorney General for Civil Rights Harmeet Dhillon posted a screenshot of the court’s certiorari grant from her Department of Justice (DOJ) account. “Election Day means Election DAY! Stay tuned!” Dhillon wrote.
That suggests DOJ will reverse its position in the case. Before Trump took office last year, the federal government supported Mississippi’s grace period in an amicus brief filed with the appeals court.*
Grace periods can save thousands of ballots from being thrown away, as data from Massachusetts illustrates. The commonwealth’s three-day grace period only applies to general elections, not primaries. In the March 2024 presidential primary, Massachusetts rejected 2.7% of received ballots, including 10,042 due to late arrival, according to the Secretary of State’s office. But in the November general election, the state rejected just 1.1% of received ballots, with 2,587 ballots arriving after the grace period ended.
The Republican National Committee, the Mississippi Republican Party, the Libertarian Party of Mississippi, and a few individual voters challenged the state law, adopted in 2020 amid the COVID pandemic, which allowed mail-in ballots postmarked on or before Election Day to be counted if they were received within five business days. The plaintiffs argued the mail-in ballot receipt deadline“effectively extends Mississippi’s federal election past the Election Day established by Congress” and results in “valid ballots” being “diluted by untimely, invalid ballots.”
The federal district court originally granted the state’s motion for summary judgment, ruling that as a matter of law, states could set ballot deadlines after Election Day. But on appeal, the 5th Circuit disagreed.
“Congress statutorily designated a singular “day for the election” of members of Congress and the appointment of presidential electors,” Judge Andrew S. Oldham, a Trump appointee, wrote in the court’s opinion. “Text, precedent, and historical practice confirm this “day for the election” is the day by which ballots must be both cast by voters and received by state officials.”
Mississippi appealed the decision, with support from Vet Voice Foundation and the Mississippi Alliance for Retired Americans*, arguing that courts across the country — including the 5th Circuit — have upheld early voting periods, undermining the argument that ballots must be both cast and received on a single day. Moreover, they argued, the counting and canvassing of votes routinely extends beyond Election Day, with results often only finalized days or even weeks after the polls closed — the functional equivalent of a properly-postmarked mail-in ballot arriving during a grace period.
Republicans have taken aim at mail-in ballot grace periods in recent years, passing laws in Kansas, North Dakota and Utah this year to move up ballot receipt deadlines to Election Day. Ohio Republicans recently introduced their own bill to ban grace periods, soon after the Trump Justice Department threatened the state with a lawsuit over the issue, as Democracy Docket reported recently.
In March, Trump issued an executive order pressuring states to reject mail-in ballots received after Election Day. That aspect of the order was blocked by a federal court in Massachusetts.
Trump reiterated his demands to end mail-in ballots immediately after Democrats dominated Tuesday’s elections. “It’s time for Republicans to do what they have to do and that’s terminate the filibuster,” Trump told GOP senators gathered at the White House. “We should pass voter ID. We should pass no mail-in voting.”
Rep. Bryan Steil (R-Wisc)., the chair of the House Administration Committee, has said he will introduce a bill banning vote by mail grace periods soon after the federal shutdown ends.
Mississippi will have 45 days to file its brief as petitioners in the case, and the plaintiffs will then have 30 days to respond. The court will likely hear oral arguments sometime in the coming spring and hand down its opinion before the current term ends in June or July.
*Vet Voice Foundation and the Mississippi Alliance for Retired Americans are represented in the lawsuit by the Elias Law Group (ELG). ELG Chair Marc Elias is the founder of Democracy Docket.
*Jen Rice contributed to this story.
*This story was updated to include reactions from Fitton and Dhillon.