Supreme Court Could Decide How Late Ballots Can Arrive After Election Day

The U.S. Supreme Court could decide a case regarding whether voters’ ballots rolling in days or weeks after Election Day still can be counted. 

Just weeks before last November’s election, the 5th U.S. Circuit Court of Appeals ruled in a case from Mississippi that federal law requires mail-in ballots to arrive by Election Day. Mississippi had allowed for counting ballots that arrived up to five days after Election Day. The ruling didn’t impact the 2024 election. 

At least 17 states and the District of Columbia count ballots that arrive late, with at least two allowing them to arrive as many as 14 days afterward. 

On April 18, U.S. District Judge Louis Guirola Jr. of the Southern District of Mississippi ordered a stay on further litigation in the Mississippi case until the U.S. Supreme Court decides on the matter. Though Mississippi Secretary of State Michael Watson—who runs elections in the state—hasn’t committed to appealing to the high court yet. 

“The secretary is exploring all options, which could include an appeal,” Watson spokesperson Alana Magliolo told The Daily Signal Tuesday. 

Guirola wrote in his April 18 order that Watson’s motion was “to stay further district court proceedings pending the filing and disposition of a petition for a writ of certiorari in the United States Supreme Court and the conclusion of any Supreme Court proceedings.”

A Supreme Court ruling on the matter could be significant, as President Donald Trump’s executive order on election integrity included a provision that would deny federal election funding grants to states that continue counting ballots that arrive after Election Day.

As documented in my book, “The Myth of Voter Suppression,” absentee ballot harvesting has been the single biggest source of proven election fraud, even leading to overturned races, including a congressional election in 2018. Ballot harvesting is when political operatives collect or distribute large amounts of absentee ballots. This could lead to the intentional or unintentional loss of certain ballots, ballots being filled out fraudulently by the operatives, or the people receiving the ballots being coerced by the operatives to vote a certain way.

California is most well known for seeing the forecast of races flip because late-arriving ballots are counted. Rep. Darrell Issa, R-Calif., and government accountability group Judicial Watch sued California in March to require counting only ballots that arrive by Election Day.

The 5th Circuit covers the states of Mississippi; Texas, where state law allows ballots arriving one day after Election Day to be counted; and Louisiana, which requires mail-in ballots arrive one day before Election Day.  

The October ruling by the three-judge panel of the 5th Circuit says, “Federal law does not permit the state of Mississippi to extend the period for voting by one day, five days, or 100 days.”

After the October ruling, a coalition of liberal groups filed a motion asking the full 5th Circuit to reconsider the panel’s decision, claiming it “dramatically upsets the balance between state and federal election administration struck by the Constitution’s elections clause by reading into the federal statutes an unspoken limitation on state power that has no grounding in text or history.” 

Groups on the Left have contended that enforcing such rules could disenfranchise voters. 

The dispute is about counting ballots that arrive after Election Day. It does not concern counting ballots after Election Day as long as they arrive on or before Election Day, for instance, if there is a recount or the election workers could not complete the count on election night. 

Illinois and Utah count ballots arriving up to 14 days after Election Day, according to the National Conference of State Legislatures. 

Alaska and Maryland allow ballots postmarked by Election Day to be counted up to 10 days after the election. 

California, the District of Columbia, New York, and Oregon count ballots arriving seven days after the election. 

New Jersey counts ballots arriving up to six days later. West Virginia will accept mail-in ballots arriving five days after. Nevada and Ohio count up to four days after. Kansas, Massachusetts, and Virginia count ballots arriving up to three days after Election Day. 

Washington state law says that ballots received after the election with postmarks before Election Day are counted, but no deadline is specified for when they must be received, according to the National Conference of State Legislatures.

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