The Supreme Court on Monday upheld Mississippi’s mail-in ballot law that allows absentee ballots to be counted up to five days past Election Day.
The 5-4 decision, written by Justice Amy Coney Barrett, says there’s no conflict between federal law and Mississippi’s law that allows ballots — postmarked before Election Day — to be counted up to five days afterward.
“The federal election-day statutes do not preempt Mississippi law,” Justice Barrett, a Trump appointee, wrote in the majority opinion. “The election-day statutes require the electorate’s choice to be made on election day. That occurs so long as election day is the deadline for individuals to vote — as it is in Mississippi. But the election-day statutes do not set a deadline for ballot receipt, so they do not prevent Mississippi from counting ballots postmarked before election day yet received afterward.”
Justice Barrett was joined by Chief Justice John G. Roberts Jr. and the three Democratic appointees.
The U.S. Supreme Court is seen …
more >
Justice Samuel A. Alito Jr. wrote the lead dissent, saying federal law requires a voter to make a choice by Election Day and that allowing ballots to be counted days later violates that standard.
“The second issue is the identification of the acts that constitute the electorate’s expression of its choice, and those acts are the final submission and collection of ballots. These acts must therefore occur on election day,” wrote Justice Alito.
Justices Clarence Thomas, Neil M. Gorsuch and Brett M. Kavanaugh joined the dissent.
Mississippi’s law was challenged by the Republican National Committee, arguing that there is one federal Election Day and that all ballots should be counted by that time.
The 5th U.S. Circuit Court of Appeals sided with the RNC, but the justices’ decision on Monday reversed that ruling.
Ballots in Mississippi can be counted if received up to five days after Election Day, as long as they were mailed or sent by a “common carrier,” such as FedEx, by Election Day.
Opponents argued that violates the idea that an election is “consummated” on Election Day.
Mississippi adopted its rule for the 2020 elections amid the COVID-19 pandemic. At that time, all ballots had to be collected by the U.S. Postal Service by Election Day.
In 2024, the state added other common carriers as acceptable ballot recipients.
Congress first enacted a federal Election Day in 1845 and firmed it up in 1872, bookending the Civil War.
Voting can begin as early as five days before Election Day in some parts of Pennsylvania. Two states allow voting 46 days ahead, and three allow 45 days.
Ballots will be counted if received weeks late in some states, including up to 21 days after Election Day in Washington and 14 days in Illinois. Eight states allow ballots to arrive without postmarks.
