On March 23, the Supreme Court heard extended arguments in a closely watched case about the ability of states to count late-arriving ballots in the upcoming fall federal elections. The justices’ numerous questions raised constitutional issues and spurred a debate over the meaning of two words: Election Day.
In Watson v. Republican National Committee, the Republican National Committee (RNC) and others sued Michael Watson in his capacity as Mississippi Secretary of State over a state law that allows Mississippi to count mail-in ballots up to five days after Election Day under certain circumstances.
The RNC believed only federal statutes define the power of Congress to set the date for federal elections and any policy to permit the counting of ballots received after Election Day. The Mississippi state law allowing the counting of late-arriving ballots for up to five days after Election Day, they argued, violated the rights of candidates to stand for office protected by the First and 14th Amendments.
A federal district court agreed with Watson and the state, deciding there was not a conflict between the Mississippi state law and several federal statutes. However, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled in favor of the RNC, concluding that federal Election Day “is the day by which ballots must be both cast by voters and received by state officials.” The full Fifth Circuit denied a case rehearing in a 10-5 vote. The Supreme Court accepted the case on Nov. 10, 2025.
In briefs submitted to the court prior to arguments, the Supreme Court was presented with several issues to consider. The arguments from both sides took into account the Constitution’s Article 1, Section 4, Elections Clause, which allows individual states to establish the “Times, Places and Manner of holding Elections for Senators and Representatives.” However, Congress can at “any time by Law make or alter such Regulations.” Congress has passed statutes 2 U.S.C. § 7, 2 U.S.C. § 1, and 3 U.S.C. § 1, that set the Tuesday after the first Monday in November, in every even-numbered year, as the “election” day for federal offices.
One basic issue for the court were the requests from Watson and the RNC for the justices to decide when a federal election happens. In the state of Mississippi’s view, an election happens at the time when voters fill out and submit ballots on or before Election Day. Citing Newberry v. United States (1921) and historical precedents, Mississippi argued that it had the ability to count ballots postmarked on or before Election Day that are tardy because the election outcome “does not depend on when ballots are received.”
The RNC took a different view. Citing the two federal laws that set the “election” day for federal offices, the RNC argued that an election for federal offices ends on Election Day. Citing another Supreme Court precedent, Foster v. Love (1997), the RNC argued that extending an election deadline set by Congress conflicted with the intent of federal lawmakers, and that federal Election Day statutes govern when states must close the ballot box, not allowing states to count late-arriving votes.
The extended arguments at the Supreme Court
After Mississippi solicitor general Scott G. Stewart’s opening statement on March 23, Justice Clarence Thomas posed the basic question presented in the briefs to the Court about the definition of Election Day in federal elections.
“Just to be clear, you have said in your opening statement sometimes, you said, the decision—the choice has to be made by Election Day, and at other points, you say on Election Day. Which is it?” Thomas asked. Stewart replied that the election was held by Election Day, leading Justice Thomas to offer an example of a person giving their mail-in ballot to a neighbor to submit in the mail as seemingly conflicting with the state law.
The follow-up questions from the court focused on several issues. One line was focused on complications related to policy scenarios posed by Justices Thomas and Justice Amy Coney Barrett about how mail-in ballots were submitted.
Barrett posited that while the Mississippi state law required a mail-in ballot to be “deposited in USPS or with a common carrier,” it could easily be included in a group of ballots collected by an HOA to be deposited as a group, which presented conflicts.
Another line of questioning centered on precedents. Justice Sonia Sotomayor cited practices during the Civil War that permitted officers to submit ballots on behalf of other military members. Justice Ketanji Brown Jackson cited other precedents dating back to the Founding era.
“Congress permitted in 1792 about a month to elapse between the casting of votes, which, by the way, it called Election Day, and … the electors submitted them to the president of the Senate up to a month after,” Jackson argued. That example presented “significant and compelling historical evidence of Congress's understanding of what was required by Election Day versus the receipt of those ballots at some subsequent point,” she told Mississippi solicitor general Stewart.
Justice Samuel Alito also asked Stewart about the appearance of impropriety if states could set extended deadlines for receiving ballots. “Some of the briefs have argued that confidence in election outcomes can be seriously undermined if the apparent outcome of the election on the day after the polls close is radically flipped by the acceptance later of a big stash of ballots that flip the election.” Stewart replied by pointing to the case brief of United States Solicitor General D. John Sauer: “They haven't cited a single example of fraud from post-Election Day ballot receipt in this century.”
Military and absentee voting and other scenarios
In its arguments, the state of Mississippi also pointed to the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), a law that permits the late receival of overseas military and absentee ballots.
Justices Jackson and Sotomayor had direct questions about the UOCAVA precedent. “I think we have several federal statutes that suggest that Congress was aware of post-Election Day ballot deadlines that the states had enacted and, in fact, incorporated those in several circumstances,” she told Stewart.
In later questioning with Paul Clement, who was arguing for the RNC, Sotomayor asked if Congress by passing UOCAVA that allowed for the states to establish a “process in the manner provided by law for absentee ballots.” Justice Elena Kagan echoed similar comments about UOCAVA: “What [Congress] took from that is that they thought that this state function of setting ballot receipt deadlines was something that was a state function.”
Justice Neil Gorsuch also asked about a scenario where states that had extended ballot receipt deadlines could also allow for a voter recall. Chief Justice John Roberts wondered if the Court’s ruling could affect the status of early voting laws in the states that allowed the counting of late-arriving votes.
And Justice Brett Kavanaugh voiced concerns to Clement about how the Court’s decision could affect the upcoming fall elections under the Purcell principle. Based on Purcell v. Gonzalez (2006), courts are not expected to change voting rules and guidelines prior to an election in an effort to avoid confusing voters while presenting conflicts for people administering elections. Clement believed a June decision from the court left adequate time for state officials to prepare for the fall general election.
After two hours of arguments, these and other questions presented to the Court will be subject to much speculation as will the Court’s decision, given the high profile of elections that will decide the control of Congress.
Scott Bomboy is the editor in chief of the National Constitution Center.
