Blue Brief 2025-2026

Maimon Schwarzschild

Professor of Law

Watson, Mississippi Secretary of State v. Republican National Committee et al.: Mail-In Ballots Arriving After Election Day

X.

M ay a state accept and count mail-in ballots in federal elections that arrive after election day? As the Supreme Court’s 2025 Term came to a close in late June 2026, the Court ruled that the answer is “yes. ” The majority opinion was written by Justice Barrett and joined by Chief Justice Roberts, as well as by Justices Kagan, Sotomayor, and Jackson. Under Mississippi state law , mail-in ballots postmarked on or before election day, but actually received up to five business days later, are counted in federal elections, that is, in presidential, U.S. Senate, and congressional elections. The Republican National Committee and various others sued to challenge this, contending that votes to be considered valid, must be received by election day. A unanimous panel of the Fifth Circuit agreed . In a 5-to-4 decision, the Supreme Court disagreed and upheld the Mississippi practice.

Although the Constitution provides for state regulation of elections, it also empowers Congress to enact overriding regulation . Congress has done so with respect to the timing of federal elections, by defining “election day” to be the first Tuesday after the first Monday in November. Watson is therefore not a Constitutional decision, but rather a case of federal statutory interpretation: is “election day” the day by which ballots must be cast, or is it also the day by which the ballots must be received? The five-justice majority held that federal election laws require ballots to be cast by election day, but that just as ballots may be counted — or their legality verified, or the winner certified — after election day, so a state may choose to accept mail-in ballots that arrive afterwards as well. Some thirty states now do so for overseas and military absentee ballots, and some fourteen states accept domestic mail-in ballots as well, with a variety of time limits — 7 busin ess days after election day in California,

UNIVERSITY OF SAN DIEGO SCHOOL OF LAW | Faculty Review of 2025-2026 U.S. Supreme Court Term | Page 32