Blue Brief 2025-2026

give rise to the appearance of fraud because election results may appear to flip after election day… . This is a significant concern.” (The majority respectfully quoted Justice Kavanaugh on the “chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.”) But the Court’s 5-to-4 interpretation of existing federal election law is that Congress has not laid down an election-day deadline for mail-in ballots.

“Election fraud and its appearance are serious issues,” said the Court. “Like other such issues, however, they must be addressed through the democratic process…. If varied deadlines for ballot receipt similarly call for a national solution, the American people must choose it through their elected representatives.” Congress has the power, in short, to require that mail in ballots arrive by election day. It is up to Congress — perhaps urged on by the President — whether to enact legislation accordingly.

Maimon Schwarzschild

UNIVERSITY OF SAN DIEGO SCHOOL OF LAW | Faculty Review of 2025-2026 U.S. Supreme Court Term | Page 34