The Supreme Court on Monday heard oral arguments in a case that will decide if states can continue to count mail-in ballots that arrive after Election Day.
It’s a key issue for President Donald Trump, who has repeatedly criticized mail-in voting, especially after his 2020 election loss.
The state of Mississippi is challenging the Republican National Committee after a Trump-appointed panel of three judges in the 5th Circuit Court of Appeals ruled in 2024 that a Mississippi state law allowing ballots to be counted after Election Day violated federal law.
Under the law, the ballots had to be postmarked by Election Day but could be counted if received up to five days after.
U.S. Solicitor General John Sauer and former U.S. Solicitor General Paul Clement for the Libertarian Party of Mississippi argued against allowing states to count mail-in ballots received after Election Day.
Depending on how the justices decide this case, it could have major impacts for the 2026 November midterm elections.
About one in three Americans cast their ballots by mail in the 2024 general election. There are 14 states and Washington, D.C., that allow people to mail ballots postmarked on or before Election Day that will be counted, so long as they arrive within a set grace period. Many other states have similar windows for receiving ballots for military members or overseas voters.
Mail-in voting became a widespread method to cast a ballot during the 2020 general election due to the COVID-19 pandemic. Many states have scaled back the usage in recent years, particularly red states after Trump claimed the rise of mail-in ballots cost him the 2020 election, but it still remains a popular way to cast a ballot in modern America.
Here’s how arguments went:
Mississippi faces sharp scrutiny from conservative justices
Mississippi Solicitor General Scott Stewart began oral arguments before the justice on Monday and argued that keeping the precedent of mail-in ballots postmarked on or before Election Day should count.
Stewart noted that he believes voters must make their decision about who and what they’re voting for by Election Day, not after. While a candidate or final decision may not be confirmed or finalized on Election Day, the electorate must decide or make their decision by casting ballots on Election Day, even if the state receives it after the day is over, Stewart argued.
He faced sharp questioning from several of the court’s conservative justices, including Justices Clarence Thomas, Amy Coney Barrett and Neil Gorsuch.
Gorsuch, seen as a bit more moderate than his more conservative colleagues but still very traditional, was one of Stewart’s harshest critics during oral arguments on Monday. He questioned Stewart over federal law and hypotheticals like a timestamped video.
Justice Brett Kavanaugh pointed to the historical context of how mail-in voting has only been popularized in more recent years. He asked how the justices were supposed to think of the grace period if the “historical practice” requires receipt of the ballot by Election Day.
“Certainly, we care so much about our history of people showing up in person, but we realized that was very difficult. We wanted to kind of winden the tent and make it so that people can vote,” Stewart replied, noting the decline in in-person attendance and the rise of absentee ballots coupled with the pandemic.
Stewart also noted U.S. servicemembers and the long-standing ability they have had that allows them to vote via the mail when deployed overseas. He said it’s been a “perennial challenge” to make sure that military members and their families can get their ballots in time and that’s why they are a “very popular group” in the post-Election Day ballot total.
Justice Samuel Alito pressed Stewart about when and where they should draw the line. It’s a “difficult” but possibly “inevitable” line-drawing process, should the justices rule in Mississippi’s favor, Alito said. “We don’t have a lot to go on here,” he noted.
“We have the phrase Election Day, and we have history … We don’t have Election Day anymore. We have election month or we have election months,” Alito said.
Stewart said he believes that Congress should have the final choice on which day is the last day states can receive mail-in ballots postmarked on or before the actual day of the election. Since Congress hasn’t spoken on this matter, it’s given states a lot of leeway, he argued, noting that if the legislative branch were to set a law, it would provide more clarity and unity for the electoral process post Election Day.
To the administration’s point that mail-in ballots and the receipt of them after Election Day could increase the chance of fraud in America’s elections, Stewart said the administration hasn’t shown an example that there is fraud in the ballots returned after Election Day.
GOP backs early voting but lay out argument for hard Election Day stop
Clement, arguing on behalf of Libertarian Party of Mississippi, said he believes that early voting is permissible under federal law, breaking from some in his party who want to outlaw any early voting. Sauer, during his allotted time, later reiterated that message, which could potentially come back to impact the Trump administration.
However, Clement said that the ballot needs to be “consummated” and early voting is fine while ballots that arrive after Election Day are not.
Clement, who faced far fewer interruptions and questions from the justices, often went on lengthy explanations, including detailing proxy voting during the Civil War, modern day absentee voting and Congress’ decisions when it made election decisions in the late 1800s.
The court’s more liberal justices, Justice Kentaji Brown Jackson and Elena Kagan, were some of the more vocal critics of Clement’s argument, particularly about when Congress, the federal government and states would say the deadline on Election Day should be. Kagan pressed hard against Clement, noting that historically Congress believed that elections were a state function and states were responsible for setting ballot receipt deadlines.
He argued that he didn’t think Kagan’s argument was logical and said the federal government would defer to the states about handling overseas and military voters ballot return deadlines. Clement later said that in some ways, they think that the “ballot box closing is a nice, kind of common sense capture for the idea that the election ends on Election Day.”
Part of Republicans’ and Clements’ argument is that if the justices were to uphold Mississippi’s late ballot acceptance policy, it would cause a “slippery slope” for other states. States could make up various deadlines about when ballots should be received after Election Day.
“That seems to me to be a large reason for why Election Day should mean Election Day,” he said.
During Clement’s argument, the issue of the Purcell doctrine was raised. The doctrine means federal courts must avoid changing election rules close to an election. With the 2026 midterm elections just months away, Kavanaugh questioned if the Republicans were to prevail and the justices were to issue a decision by the end of their term in June, if it would impact races in the fall.
Clement said he didn’t think so, that if the justices ruled in his favor in June, states would have “plenty of time” to adjust before November.
Sauer spoke after Clement for just about 15 minutes in support of the RNC. He was sharply criticized by the court’s liberal justices.
He was pressed by Jackson on why this case matters if Congress hasn’t previously acted to prevent states from having various grace periods after the election in the past. No congressional action means Congress has no problem with it, she argued.
Kagan pushed back on part of Sauer’s argument about going back to the 19th Century to examine how ballot receipt happened per congressional action at the time. “Congress couldn’t have conceived of the kind of early voting we have now. It couldn’t have conceived of a thousand other ways in which we administer elections now,” she said.
Sotomayor, who has criticized the administration in the past for taking things out of context, said she was more than “a little” upset with the statements Sauer made quoting historical sources out of context.
Sauer pushed back against each of their arguments before allowing Stewart to deliver his rebuttal.
Voting late through USPS is TBD
Stewart pushed back on Sauer and Clements’ arguments about the 19th century ballot receipt process as a process with outdated technology and in-person only capabilities. He pointed to other U.S. systems that use the United States Postal Service for important and secure information transfer, including tax returns.
“I think the best way to resolve this case is to come back to the text, history and precedent, which we’ve said many times just does not deceive,” he said. “This is ultimately a federalism case.”
It’s still unclear how the justices will rule in the case, particularly given the near-future implications of the decision ahead of the midterm elections.
However, it’s clear that the administration would like the issue resolved before November. Trump signed an executive order last March that directed Attorney General Pam Bondi to go after states that counted mail-in ballots after Election Day.
Some Republican-led states have even taken steps to stop counting late ballots, including in Utah, Kansas and North Dakota. Legislation is progressing elsewhere, including Ohio.
The high court is expected to deliver a ruling on the case before the end of its term in June.