The Supreme Court could soon be asked to decide whether states can continue counting ballots that arrive after Election Day.
A federal judge in Mississippi this week indefinitely halted court proceedings in a Republican-backed lawsuit challenging the state’s ballot receipt deadline, signaling that state officials must petition the Supreme Court for review in order for litigation to proceed.
“All District Court proceedings in the above-styled consolidated cases are hereby STAYED pending the filing and disposition of a petition for a writ of certiorari in the United States Supreme Court and the conclusion of any Supreme Court proceedings on the merits,” U.S. District Judge Louis Guirola wrote in his order.
The lawsuit, brought by the Republican National Committee, the Mississippi Republican Party, and several voters, challenges Mississippi’s policy that allows mail-in ballots postmarked by Election Day to be counted if received up to five business days later.
Plaintiffs argue the practice of accepting the late ballots violates federal law, which sets a uniform Election Day for federal contests, and they warn that counting ballots after that date risks diluting timely, valid votes. Their complaint also raises constitutional concerns under the First and Fourteenth Amendments.
Although a district court initially upheld Mississippi’s policy, the 5th U.S. Circuit Court of Appeals reversed that decision last fall, weeks before Election Day, finding that the five-day window conflicts with federal election law.
“Early postwar iterations of absentee voting universally required receipt by Election Day. After the Civil War ended, most States eliminated field voting,” the 5th Circuit wrote in its decision last year.
“Even today, a substantial majority of States prohibit officials from counting ballots received after Election Day. In January 2020, before the COVID-19 pandemic, only 14 States and the District of Columbia accepted ballots postmarked by Election Day—with the other 36 requiring receipt on or before that date,” the 5th Circuit majority added.
The appeals court’s decision was not binding on the November election and the case was sent back to the district court for further proceedings. Now, the next step would be for Mississippi to file a petition to the nation’s highest court for further consideration.
Jason Snead, executive director of Honest Elections Project Action, told the Washington Examiner the legal battle raises significant questions about federal election law and could soon demand the high court’s attention.
“It is an important case just in general regarding what the Federal Election Day statutes actually mean, and whether or not it’s legal for states to allow late ballots to come in after Election Day,” Snead said. “It’s very clearly headed to the Supreme Court — whether or not they’ll take it, I don’t know, but even if they decide it’s not right for review yet, there are likely to be future opportunities with circuit splits emerging.”
Currently, 17 states, including Washington, D.C., Puerto Rico, and the Virgin Islands, allow ballots postmarked by Election Day to be counted even if received afterward. High-population states such as California, Texas, Ohio, and Nevada are among those following this practice.
The legal battle comes amid a broader push by President Donald Trump and Republican leaders to tighten election procedures.
In March, Trump signed an executive order reinforcing the Election Day deadline and directing the Justice Department to enforce it against states allowing late-arriving ballots, a move that has already triggered lawsuits from Democratic-led states.
Snead said the 5th Circuit’s reasoning is strong, particularly its conclusion that voting is not completed simply by mailing a ballot, but only when it is received and processed by election officials.
“I do think some degree of certainty here would be helpful,” Snead said. “Ideally, we would resolve this before the next presidential election, before we find ourselves in the crucible of an October or November surprise or a post-election challenge in the next presidential cycle.”
The last time the Supreme Court weighed a similar case was back in October 2020, at the height of the COVID-19 pandemic, when state laws were adjusted to accommodate more mail-in ballots — a move that Trump railed against as one of thecauses of his defeat to Joe Biden.
In a decision declining to take up one of the most high-profile election debates at the time, the Supreme Court allowed election officials to count late-arriving ballots as long as they were postmarked by Nov. 3.
Several of the high court’s Republican-appointed justices — Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas — said they would have agreed to the stay request. But Chief Justice John Roberts, an appointee of former President George W. Bush, joined the court’s three Democratic-appointed members to reject the request.
JUDGE PARTIALLY BLOCKS PROOF OF CITIZENSHIP VOTING RULE
Thomas issued a long and tersely-worded dissent at the time, saying the majority’s refusal to settle this longstanding issue “is befuddling.”
If the Supreme Court ultimately steps in, it could bring nationwide clarity on mail-in voting and clarify whether final ballot counting should be conducted by Election Day, or whether there is any wiggle room for additional tabulations for late-arriving ballots.
