Mail-In Ballots, the 2026 Election, and the Supreme Court

According to Article 1, Section 4, of the U.S. Constitution, “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” Yesterday, the U.S. Supreme Court heard arguments in a high-profile case that asks whether the federal law that established a uniform national date for federal elections should be read to override a state law that allows the counting of mail-in ballots that were sent by election day but were not received until after election day. Judging by the oral arguments, the outcome may be too close to call.

The case is Watson v. Republican National Committee. As the name indicates, it involves a Republican-led challenge to a state’s mail-in voting system. Mississippi law currently allows the counting of mail-in ballots so long as the ballot is postmarked by election day and received by state officials no later than five business days after election day. The Republican National Committee (RNC) seeks to abolish that state practice.

In its principal brief, the RNC argued that Mississippi’s approach should be deemed illegal under federal law because “when Congress designated a single ‘day for the election,’ it set a deadline. If a state law extends the election after that deadline, ‘it conflicts with’ Congress’s timing decision ‘and to that extent is void.”

In a reply brief, Mississippi Secretary of State Michael Watson argued that his state’s regulation is nowhere precluded by federal law because “an ‘election’ is the conclusive choice of an officer, that choice is made when the voters have cast their ballots, and under Mississippi law the voters do that by election day.”

Both sides agree that Congress may, if it wanted to, directly prohibit a state from counting mail-in ballots that arrived after a federal election. The disagreement is about whether Congress already has prohibited the states from doing so. Because federal election law does not explicitly say anything like that, however, the legal wrangling is largely over questions of congressional intent and statutory interpretation, as well as the related question of just how much deference the states ought to receive in this kind of dispute, given the leading role over elections that the Constitution did assign to them.

During yesterday’s oral arguments, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch all sounded ready to rule against Mississippi’s mail-in balloting law. “We don’t have Election Day anymore,” asserted Alito. “We have election month or we have election months. I mean, the early voting can start a month before the election. The ballots can be received a month after the election.”

Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, meanwhile, all sounded just as ready to rule for the state. “It seems odd to me,” said Jackson, “that we are to assume that when Congress set an Election Day, it necessarily precluded the states from saying, in our state, we’re going to consider Election Day to be the date of casting the votes and that we will, as Mississippi has done, continue to receive them up to a certain period afterwards.”

As for the remaining three members of the Court, Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett, their views did not come across quite so clearly, at least to me.

Mississippi is one of more than a dozen states that currently have such mail-in balloting laws on the books. So the outcome of this dispute could impact election day practices well beyond the borders of the Magnolia State. With both a midterm election coming up this fall and a sitting president who recently argued that “Republicans ought to nationalize the voting,” that leaves us with the makings of a Supreme Court decision that is as important as it is controversial. Stay tuned.