Supreme Court allows late-arriving mail ballots, leaving California’s system unaffected

WASHINGTON — The Supreme Court on Monday dealt a surprise setback to the GOP and upheld state laws that allow for counting mail ballots that are postmarked by election day but arrive later.

The 5-4 decision in a Mississippi case rejects a Republican challenge to laws in California and 13 other mostly Democratic states that permit the counting of these late-arriving ballots.

Justice Amy Coney Barrett and Chief Justice John G. Roberts Jr. joined with the three liberals to form the majority.

The decision avoids an election-year change in the voting rules and may bolster Democrats in the fall election.

Barrett said the history of American elections shows that states and their voters have often followed different rules. Moreover, she said, Congress has let them do just that.

Since early in the 20th century, most have allowed absentee ballots from residents who are away on election day. “Today, roughly 30 states count at least some absentee ballots mailed by election day but received afterward,” she wrote.

While Congress could have prohibited the counting of late-arriving ballots, it had not done so. That may be because states wanted to count ballots from members of the military stationed overseas even if they arrived late.

And more recently, states and their voters have turned to voting by mail.

In response to the COVID-19 pandemic, Mississippi changed its laws to accept mail ballots that were postmarked on time but arrived up to five days late.

The Republican National Committee sued and urged the Republican-dominated courts to outlaw the counting of late ballots.

But Barrett, President Trump’s third appointee, spoke for the court in rejecting that plea. She said the designation of a nationwide election day requires only that the voter must decide by then.

“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,” she wrote. “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.”

Republicans led by Trump have contended that voting by mail and counting late arriving ballots may lead to fraud. California has been a favorite target of GOP attacks.

While California’s seven-day grace period for mail ballots has contributed to slow tabulations, it has not been shown to trigger fraud or unreliable vote counts.

In 2024, more than 400,000 late-arriving ballots were counted, but they amounted to only 2.5% of the total.

Election law experts blame slow tallies on the surge in voting by mail combined with the need to carefully match signatures on these ballots.

The court said federal law since 1845 has set election day nationwide as the Tuesday after the first Monday in November and voters were required to cast their ballots that day.

Citing that fact, the Republican National Committee and the Trump administration joined a challenge to a Mississippi law adopted during the COVID-19 pandemic that allowed counting ballots that were up to five days late.

Trump’s lawyers said federal law preempted or overrode the state law.

“From the dawn of America, election day has meant the day the ballot box closes — and when election officials must be in receipt of all ballots,” wrote Solicitor Gen. D. John Sauer.

Democrats said the Constitution says the “time, place and manner of holding elections” for Congress “shall be prescribed in each state” by its legislature. However, Congress was given the power to override those state rules and set its own regulations for federal elections.

It was telling, Barrett said, that Congress has made changes in the election rules but did not outlaw late-arriving ballots.

Instead, Barrett said, it left in place the rule that “the electorate’s choice is made when voting is complete, not when ballots are received.”

While Congress could have prohibited the counting of late-arriving ballots, it had not done so. That may be because states wanted to count ballots from members of the military stationed overseas even if they arrived late.

Last year, however, the 5th Circuit Court of Appeals in New Orleans struck down Mississippi’s law that allowed for counting ballots that were cast by election day but arrived up to five days later.

The opinion by three judges, all Trump appointees, concluded that the election day set by Congress “is the day by which ballots must be both cast by voters and received by state officials.”

In its appeal, Mississippi stuck with a states’ rights view and argued that the federal election-day statutes mean that ballots must be cast — not received — by election day.

“This is a victory for voters and for an election system that meets the needs of the people it serves,” said Common Cause President Virginia Kase Solomón. “Eligible Americans shouldn’t lose their voice because of mail delays outside their control.”

Joe Gruters, the chairman of the Republican National Committee, said Republicans will keep fighting to end the practice of counting late-arriving ballots.

“Democrats are inviting chaos at the ballot box by allowing elections to drag on for days and weeks after voters cast their ballots,” he said in a statement. “Republicans are not going to be deterred by this decision, and the RNC will keep fighting to have elections end on Election Day as Americans want.”