The U.S. Supreme Court is hearing arguments on Monday to decide whether states can continue to count late-arriving mail ballots — an election issue targeted by President Donald Trump.
All 50 states require ballots to be cast or postmarked on or before Election Day, but 14 states have grace periods for receiving and counting regular mailed ballots, ranging from a day to several weeks after the election.
A final ruling will almost certainly come by late June, early enough to govern the counting of ballots in the 2026 midterm congressional elections.
Here's the latest:
The case wound through conservative 5th U.S. Circuit Court of Appeals
Republicans looking to interest the justices in taking up the issue could have sued in New York, Illinois or Washington, among other states with relaxed deadlines for receiving mailed ballots.
But they chose heavily Republican Mississippi to put the case in front of the 5th circuit, where a panel of three Trump appointees struck down the state law.
The Supreme Court is much more likely to intervene when a lower court has struck down a state law, reasoning that the nation’s highest court should have the final word on such things.
Current and former solicitors general team up
Solicitor General D. John Sauer, in his eighth Supreme Court argument, is urging the court to rule out late-arriving ballots, except for voters in the military and overseas.
Sauer’s biggest win to date was the presidential immunity decision that spared Trump from being tried for his effort to overturn the 2020 election. Paul Clement, who held Sauer’s job under George W. Bush, is arguing his eighth case this term among more than 125 arguments since 2001.
Both men were Supreme Court law clerks to Justice Antonin Scalia early in their legal careers. Mississippi Solicitor General Scott Stewart is defending the state law in his second Supreme Court argument. In his first appearance, Stewart persuaded the court to overturn the constitutional right to abortion in the landmark Dobbs case in 2022. Stewart was a law clerk for Thomas.
Be Careful What You Oppose
Three of the four states where mail-in voting gained in popularity in the 2024 presidential election voted for President Donald Trump.
A U.S. Election Assistance Commission study of data collected at the local level and submitted by states showed that voters from Indiana, South Dakota and Utah saw higher percentages of mail voting during Trump’s successful 2024 than 2020. Washington was the fourth state in the group.
Overall mail in balloting was more popular in 2024 than in pre-pandemic years with roughly 30% of voters using that method to vote while mail ballots typically accounted for about 25% of votes cast in pre-pandemic years. The 2020 election saw 43% of votes come through the mail.
California election official worries about wider consequences
Jesse Salinas, president of the California Association of Clerks and Election Officials, says his organization’s members are concerned that a potential ban on mail ballot grace periods could mean ballots of all kinds would be required to be counted by 11:59 p.m. on Election Day.
Large numbers of young voters use California’s same-day registration system to cast ballots that are typically counted after other tallies are completed.
“So all of those folks who will want to register and vote on Election Day, we just simply won’t have the ability to process all those” ballots before midnight, he said.
A ruling against the Mississippi law could have a profound effect on the nation’s largest state
Alaska, more than twice the size of Texas, is dotted with small communities in far-flung places, many of them accessible only by air or water. Some political leaders and Native voting rights activists say the state’s 10-day grace period for absentee mail ballots is essential given the state’s unique geography and the limited postal service in rural areas.
In the 2022 general election, about 20% of all absentee ballots statewide were received after Election Day. The percentage was much higher for ballots from some of the state’s most rural communities.
The state’s senior U.S. senator, Republican Lisa Murkowski, says “there’s probably no other state where this ruling could have a more detrimental impact than ours.”
Alaska Native voting rights advocates and the state’s attorney general and solicitor general filed briefs with the Supreme Court to explain the importance of the state’s ballot grace period and the rationale behind it.
