Supreme Court Seems Skeptical Of State Law Allowing Late-Arriving Ballots

The U.S. Supreme Court on March 23 seemed skeptical of a Mississippi law that allows the state to count mail-in ballots received after Election Day in federal elections.

The Epoch Times’ Matthew Vadum reported that during oral arguments on March 23, Justice Samuel Alito seemed concerned about the possibility of fraud when “a big stash of ballots” that arrived late “radically flipped” an election.

🚨 BREAKING: The Supreme Court appears poised to STRIKE DOWN state laws allowing the mass acceptance of mail-in ballots after election day, following oral arguments — AP

It could affect several DOZEN states.

THIS IS HUGE! 🔥

Justice Sam Alito delivered a MASTERCLASS in… pic.twitter.com/6vVbbPqNUT

— Eric Daugherty (@EricLDaugh) March 23, 2026

Justice Brett Kavanaugh asked RNC attorney Paul Clement if Purcell v. Gonzalez (2006) would be implicated if the high court were to rule on the case by June.

Purcell held that federal courts ordinarily should not enjoin state election laws close to an election to avoid disruption.

Clement replied, saying “June would give them plenty of time to adjust,” in time for the general elections.

Justice Sonia Sotomayor questioned Clement’s argument that late-arriving military and overseas ballots should not be counted.

Sotomayor said, “Maybe we need a new president,” because in the disputed 2000 election, military ballots that arrived late were counted and helped Republican candidate George W. Bush win the election.

Clement rejected the justice’s observation, saying it was “the reddest of red herrings.”

Laws governing absentee military ballots have historically required they be received by Election Day, the lawyer said.

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As Matthew Vadum detailed earlier via The Epoch Times, The U.S. Supreme Court on March 23 will hear Mississippi’s appeal against a lower court ruling striking down its law counting ballots received after Election Day.

The counting of ballots received after Election Day has become an increasingly contentious political issue in recent years.

Those who support the practice say it is necessary to maximize participation in the democratic process and that states should be able to craft ballot rules to accommodate voters’ needs. Those who oppose it say that allowing ballots to be accepted after Election Day invites fraud and erodes trust in the system.

The Mississippi law allows the state to count mail-in ballots that officials receive within a five-day grace period after Election Day. The law was enacted in July 2020 during the COVID-19 pandemic to provide flexibility to voters.

Eighteen states accept mailed ballots received after Election Day if they bear a postmark made on or before Election Day, according to a National Conference of State Legislatures report.

Mississippi argues that striking down its law will cause upheaval in those states that allow ballots received after Election Day to be counted.

The Republican National Committee (RNC), the state’s Republican Party, and the state’s Libertarian Party sued over the state law, arguing that the federal election-day statute preempts—or prevails over—the state law.

Three federal statutes—U.S. Code Sections 7 and 1 of Title 2, and Section 1 of Title 3—set the Tuesday after the first Monday in November in certain years as the Election Day for federal offices. A presidential election takes place every four years; a congressional election occurs every two years.

President Donald Trump signed Executive Order 14248 on March 25, 2025, stating that his administration would enforce those statutes and “require that votes be cast and received by the election date established in law.”

Several states continue to count ballots received after Election Day, Trump said, likening the practice to letting individuals who show up three days after Election Day, possibly after a winner has already been declared, vote in person at a voting precinct.

A federal district court in Washington state blocked part of the executive order in January.

The respondents, including the RNC, challenged the state law, saying that federal laws both establish a uniform election day for federal elections and require that ballots must be received by that day.

Mississippi argues that its law allowing late receipt of ballots does not conflict with the federal election day law and that states are allowed to regulate aspects of federal elections that take place within their borders.

U.S. District Judge Louis Guirola Jr. upheld the Mississippi law in July 2024, finding that the Mississippi statute “operates consistently with and does not conflict with the Electors Clause [of the U.S. Constitution] or the election-day statutes.”

“In the absence of federal law regulating absentee mail-in ballot procedures, states retain the authority and the constitutional charge to establish their lawful time, place, and manner boundaries,” the district court stated.

The state appealed, and in October 2024, the U.S. Court of Appeals for the Fifth Circuit reversed.

The Elections Clause in the Constitution allows states to determine the time, place, and manner of federal elections, but also allows Congress to “make or alter such Regulations,” the appeals court ruled.

Many states had been in the habit of having two separate days for federal elections, so in 1872, Congress decided that all elections for the U.S. House of Representatives should take place on the presidential election day. In that situation, Congress had authority to act, the appeals court said.

Late Receipt Erodes Confidence

Christian Adams, president of the Public Interest Legal Foundation, suggested that the case was straightforward, and that it turns on statutory interpretation and “nothing else.”

“The question is whether the federal statute requires ballots in by Election Day,” he told The Epoch Times.

In his group’s brief, the foundation argues that the federal law preempts the state law. The federal statute established a uniform Election Day for federal offices to promote “finality, public confidence, and administrable election rules,” and allowing states to extend the receipt of ballots beyond Election Day has the effect of “prolonging federal elections after voting has concluded.”

Michael J. O’Neill, vice president for legal affairs at the Landmark Legal Foundation, said federal law established a single, nationwide Election Day, and that “an election cannot extend beyond that date without undermining both statutory meaning and electoral integrity.”

Allowing mail-ballots received after Election Day creates “uneven election practices and erodes public confidence,” O’Neill told The Epoch Times.

“It also invites uncertainty, delays finality, and conflicts with Congress’s intent to prevent precisely such rolling or prolonged elections,” he added.

Tom Fitton, president of Judicial Watch, said in recent years there has been a “contagion” going through the states in which they are “gutting the very notion of Election Day and allowing votes to arrive and be counted days and weeks after an election.”

Judicial Watch represents the Libertarian Party of Mississippi, a co-respondent in the case.

“Your mailbox isn’t a ballot box,” Fitton told The Epoch Times. “The idea that you drop your ballot in the mail and it gets there whenever, and it gets counted—that’s not the way it’s supposed to work.”

Potential for Upheaval

Lisa Dixon, executive director of the Center for Election Confidence, said she hopes the Supreme Court will decide that the federal election-day statute prevails over the Mississippi law.

When ballots continue to be received for up to two weeks after Election Day, and the public sees vote totals changing “sometimes even weeks” after Election Day, that erodes public confidence in the election results, she said.

The court should decide the case quickly to give states time to educate their voters and update their written materials “so voters have time to adjust,” Dixon told The Epoch Times.

“We don’t want anyone to be disenfranchised because the deadline has changed,” she said.

The Center previously filed a friend-of-the-court brief urging the high court to take up the case.

Adams indicated he wasn’t overly concerned about the potential for temporary administrative upheaval in the several states that allow receipt of ballots after Election Day if the Supreme Court strikes down the Mississippi statute.

“The law is more important than North Dakota being offended,” he said, referencing a lawsuit his foundation brought against that state for counting ballots received after Election Day.

None of the sources interviewed for this article offered a prediction on how the Supreme Court might rule.

“Predictions are too difficult, especially regarding matters of statutory interpretation,” Adams said. “Coin toss at best.”