What to know about Supreme Court oral arguments in late-arriving mail ballots case

“Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for our free weekly newsletter to get the latest. The Supreme Court justices peppered lawyers with probing questions Monday during oral arguments over whether states should be able to decide whether to count mail ballots postmarked by Election Day but received afterwards. The case before the court arises from state and national Republicans’ challenge of a Mississippi law that allows ballots postmarked by Election Day up to be counted as long as they arrive five business days later. The justices must rule on whether Election Day is the deadline for voters to cast their ballots, or whether federal law instead requires ballots to be received by elections officials by that date. Much of the argument turns on whether federal statutes defining Election Day as “the first Tuesday after the first Monday in November” means that’s the deadline for election officials to to receive voters’ ballots, rather than allowing ballots that were mailed by that date. Some of the conservative justices asked questions meant to probe the limits and implications of what states could permit. Justice Samuel Alito said the state’s position raises “some difficult line-drawing problems.” He and others also raised questions about whether the justices should consider concerns that late-arriving ballots could shift the outcome of an election and create a perception of fraud. The liberal justices, though, said the question is whether Congress has specifically preempted states from allowing post-Election Day grace periods, noting that the text of the federal statutes gives them little to go on. And many of the justices also asked how it’s possible to construe the law as prohibiting states from counting ballots received after Election Day but not, for example, prohibiting early voting, which the Republicans’ lawyers said they do not seek to challenge and believe differs. If the court were to rule that ballots must be received by Election Day, it could force an abrupt shift for this year’s closely watched midterm elections, potentially confusing voters and affecting whether hundreds of thousands of mail-ballot votes are counted. Justice Brett Kavanaugh asked lawyer Paul Clement, representing Republicans, whether a June ruling would be so close to the November elections as to create problems, and Clement said it would not, since mail ballots would not yet have been sent out. Currently, 14 states and the District of Columbia allow grace periods for late-arriving mail ballots, as long as they are postmarked by Election Day. A Votebeat analysis of data from the 2024 election found that at least 750,000 ballots eligible to be counted arrived after Election Day that year. Groups representing military and overseas voters have warned they could be disproportionately affected , and election experts have also said tightening the receipt deadlines could disenfranchise voters affected by slow postal service through no fault of their own. It’s difficult to predict the effects of changing the deadline, and there’s little data on the partisan breakdown of the late-arriving ballots. Voters from both parties use mail ballots, though in 2024, Democrats reported doing so more often than Republicans. If the receipt deadline were to change, at least some voters would likely cast their ballots early enough to meet the earlier cutoff. Clement said the federal statutes apply only to federal general elections, not primaries or other elections, so a ruling in their favor would leave open the possibility that states would allow grace periods for late-arriving mail ballots in other elections. President Donald Trump has repeatedly railed against the counting of late-arriving ballots and pushed for strict new limitations on mail ballots in federal elections. He and other Republicans have said such ballots are a vehicle for fraud. Numerous academic studies have found no increased risk when compared to other types of voting. In an executive order a year ago, Trump ordered the U.S. Justice Department to “take all necessary action” against states that count ballots received after Election Day, and said federal funding should be conditioned on states agreeing not to do so. At least 15 states sued over those provisions, and federal courts have so far largely blocked them from going into effect . The case, Watson v. Republican National Committee, began in 2024, when the national and state Republican parties and other plaintiffs sued Mississippi. The plaintiffs claimed Mississippi’s statute didn’t comply with federal law. A federal judge sided with the state, but the 5th Circuit U.S. Court of Appeals ruled for the plaintiffs, prompting Mississippi to appeal to the Supreme Court. Carrie Levine is Votebeat’s editor-in-chief and is based in Washington, D.C. Contact Carrie at clevine@votebeat.org .

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