The U.S. Supreme Court could soon end Mississippi’s practice of counting mail-in absentee ballots that arrive after Election Day, a decision that could have a ripple effect nationwide and sow confusion for November’s midterm elections.
The high court will listen to oral arguments on Monday to determine whether a Mississippi law that allows election workers to process mail-in absentee ballots for up to five days after the election, as long as the ballots are postmarked by Election Day, conflicts with federal law.
Mississippi is among 18 states and the District of Columbia that accept mailed ballots received after Election Day, according to the National Conference of State Legislatures.
The state Legislature enacted a law in 2020 during the COVID-19 pandemic to give voters a grace period for mailing their ballots.
In 2024, the Mississippi Republican Party, the Republican National Committee, a Mississippi voter and a county election official filed the federal lawsuit challenging the five-day window. The state Libertarian Party filed a similar lawsuit a few weeks later, which was combined with the first suit.
The parties argued that the state law conflicted with the federal law setting the Tuesday after the first Monday in November as the “election day.”
U.S. District Judge Louis Guirola Jr., a George W. Bush-appointed judge, initially ruled last year in Gulfport that there was no conflict between the state and federal laws.
“Congress set a national election day to avoid the ‘evils’ of burdening citizens with multiple election days and of risking undue influence upon voters in one state from the announced tallies in states voting earlier,” Guirola wrote. “Neither of those concerns is raised by allowing a reasonable interval for ballots cast and postmarked by election day to arrive by mail.”
But a three-judge panel of the New Orleans-based 5th Circuit Court later reversed him, and the full court declined to rehear the case.
Mississippi Attorney General Lynn Fitch’s office is defending Secretary of State Michael Watson in court and has argued that the five-day window after Election Day does not provide additional days for voters to cast a ballot. Rather, it’s simply an extra cushion for election workers to count the ballots.
“Under federal law, election day is the day for voters to conclusively choose federal officers. Voters make that conclusive choice by casting — marking and submitting — their ballots by election day,” Fitch’s office wrote in court papers.
The Supreme Court is expected to issue a ruling in the spring. If it rules in favor of the political parties, it would essentially invalidate the states that have a mail-in grace period law on the books.
The Mississippi Legislature passed a so-called “trigger” bill this year that would abolish the five-day grace period if the court rules against the state. The governor has until Monday to sign the bill into law or veto it.
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