Supreme Court to Hear Challenge to Mail Ballot Deadlines

Supreme Court to Hear Challenge to Mail Ballot Deadlines

The case, involving a Mississippi law permitting officials to count ballots postmarked by Election Day but received later, could affect rules in dozens of states.

Preparing mail-in ballots received in Los Angeles. The justices will hear a challenge to a law permitting election officials to receive and count mail-in ballots postmarked on or before Election Day and received within five business days. (Robyn Beck/Getty Images)

The U.S. Supreme Court will decide whether states can count mail-in ballots postmarked by Election Day but received later.

The court has agreed to review Watson v. Republican National Committee, which stems from a challenge by the RNC to a Mississippi law that permits election officials to receive and count mail-in ballots postmarked on or before Election Day and received within five business days. Mississippi is one of 16 states, plus Guam, Puerto Rico, the Virgin Islands and Washington, D.C., that currently accept and count mailed ballots from any voter received after Election Day but postmarked on or before (sometimes only before) Election Day. A total 29 states, including Mississippi, accept ballots from military and overseas voters sent before or on Election Day but received after, under certain circumstances. 

The federal district court ruled in favor of the state, holding that Congress established a single national Election Day to prevent voter burden of multiple election days and avoid undue influence from early state results. It reasoned that allowing time for ballots postmarked by Election Day to arrive by mail after does not raise those concerns.

The 5th U.S. Circuit Court of Appeals reversed the district court and held that Congress established Tuesday after the first Monday in November as Election Day, and all ballots must be cast and received by that day. The 5th Circuit based its holding on the Constitution's elections clause, which permits states to regulate the time, place and manner of elections subject to congressional override if state election rules are inconsistent with federal law. The 5th Circuit went on to reason that Mississippi's policy that a ballot can be cast before it is received is misplaced. A ballot is cast when the state "takes custody of it." Five 5th Circuit judges dissented from this ruling.

Mississippi appealed the 5th Circuit's decision to the Supreme Court, arguing that a ruling against the state will have a destabilizing national effect because many state laws would be invalidated. The state said that once voters mark and submit their ballots, the election has occurred-"even if election officials do not receive all ballots by that day." Mississippi argues that if voters cast their ballots by Election Day, they should be counted if received shortly thereafter.

Nineteen states and Washington, D.C.,  filed briefs supporting Mississippi. They argue that under the Constitution, states have the primary power to regulate elections and that prior case law makes clear that the states have the responsibility to prescribe the manner of elections and ensure they are fair. States have passed laws allowing for properly cast ballots postmarked on or before Election Day to be received within a reasonable time thereafter to "balance the desire to count all timely, lawfully cast ballots with the reality that states must certify their election results by certain deadlines."  

The supporting briefs argue that the federal Election Day statutes passed over 150 years ago contain no clear preemption of state law and thus permit states the flexibility to make a policy choice on ballot receipt. They also argue that upholding the 5th Circuit's ruling will cause nationwide chaos, forcing state legislatures to amend ballot receipt deadlines in an expedited time frame, and will call into question laws that ensure ballots from military and overseas voters are counted.

Oral argument in the case has not yet been set. The court will likely hear the case soon and issue a ruling before the end of June.

Susan Parnas Frederick is NCSL's senior federal affairs counsel.