Amicus Curiae Brief — Michael Watson, Mississippi Secretary of State, Petitioner v. Republican National Committee, et al.

Supreme Court briefJul 10, 2025

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No. 24-1260

In the Supreme Court of the United States

__________

MICHAEL WATSON, MISSISSIPPI SECRETARY OF STATE,

Petitioner,

REPUBLICAN NATIONAL COMMITTEE, ET AL.,

Respondents.

____________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

U.S. COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________

BRIEF FOR CENTER FOR ELECTION

CONFIDENCE, INC., RESTORING INTEGRITY

AND TRUST IN ELECTIONS, INC., AND

HONEST ELECTIONS PROJECT

AS AMICI CURIAE IN SUPPORT

OF GRANTING CERTIORARI

__________

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay Street

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

TABLE OF CONTENTS

Page

Table of Authorities .....................................................ii

Interest of Amici Curiae .............................................. 1

Summary of the Argument ......................................... 3

Reasons for Granting the Writ.................................... 5

I. This important question requires this Court’s

prompt resolution. .............................................. 5

A. Mail-in voting is a recent innovation with

inherent risks. ............................................... 6

B. Receiving votes after Election Day is a

newer development with greater risks. ....... 9

C. Courts disagree on the legality of late mailin ballot receipt rules. ................................. 13

II. The decision below is correct. .......................... 16

A. The default federal rule is that ballots must

be received by Election Day........................ 17

B. Mississippi’s theory would enable the

mischief Congress sought to avoid. ............ 19

Conclusion.................................................................. 21

TABLE OF AUTHORITIES

Page(s)

CASES

Arizona v. Inter Tribal Council of Arizona, Inc.,

570 U.S. 1 (2013) .............................................. 11, 17

Bost v. Ill. State Bd. of Elections,

684 F. Supp. 3d 720 (N.D. Ill. 2023), aff’d on other

grounds, 114 F.4th 634 (CA7 2024), cert. granted

sub nom. Bost v. Ill. Bd. of Elections, No. 24-568,

2025 WL 1549779 (U.S. June 2, 2025) .................. 14

Burson v. Freeman,

504 U.S. 191 (1992) .................................................. 8

California v. Trump,

2025 WL 1667949 (D. Mass. June 13, 2025) ......... 14

City of Newport v. Fact Concerts, Inc.,

453 U.S. 247 (1981) ................................................ 15

Crawford v. Marion County Election Bd.,

553 U.S. 181 (2008) .................................................. 9

Democratic Nat’l Comm. v. Trump,

No. 1:25-cv-00952 (D.D.C. 2025) ........................... 15

Democratic Nat’l Comm. v. Wis. State Legislature,

141 S. Ct. 28 (2020) .......................................... 10, 12

Does 1-3 v. Mills,

142 S. Ct. 17 (2021) ................................................ 16

Donald J. Trump for President, Inc. v. Way,

492 F. Supp. 3d 354 (D.N.J. 2020) ........................ 14

Foster v. Love,

522 U.S. 67 (1997) .................................... 3, 5, 17, 18

iii

Gallagher v. N.Y. State Bd. of Elections,

477 F. Supp. 3d 19 (S.D.N.Y. 2020)................. 12, 13

Griffin v. Roupas,

385 F.3d 1128 (CA7 2004) ....................................... 7

Issa v. Weber,

No. 25-cv-598 (S.D. Cal. 2025) ............................... 15

Labrador v. Poe,

144 S. Ct. 921 (2024) .............................................. 15

League of United Latin Am. Citizens v.

Exec. Off. of the President, 2025 WL 1187730

(D.D.C. Apr. 24, 2025)............................................ 14

Massachusetts v. United States,

435 U.S. 444 (1978) ................................................ 15

Merrill v. Milligan,

142 S. Ct. 879 (2022) .............................................. 16

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

583 U.S. 109 (2018) ................................................ 15

Pa. Democratic Party v. Boockvar,

238 A.3d 345 (Pa. 2020) ......................................... 13

Purcell v. Gonzalez,

549 U.S. 1 (2006) ................................................ 8, 15

Trump v. CASA, Inc., No. 24A884,

2025 WL 1773631 (U.S. June 27, 2025) .................. 6

United States v. Constantine,

296 U.S. 287 (1935) ................................................ 15

Voting Integrity Project, Inc. v. Keisling,

259 F.3d 1169 (CA9 2001) ..................................... 18

Washington v. Trump,

No. 2:25-cv-00602 (W.D. Wash. 2025) ................... 14

Whole Woman’s Health v. Jackson,

141 S. Ct. 2494 (2021) ............................................ 16

CONSTITUTIONAL PROVISIONS

U.S. Const. art. I, § 4, cl. 1 .................................... 3, 17

U.S. Const. art. II, § 1, cl. 4 ......................................... 3

STATUTES

10 Ill. Comp. Stat. Ann. 5/19-8............................ 13, 21

2 U.S.C. § 1 ............................................................ 3, 17

2 U.S.C. § 7 ...................................................... 3, 17, 18

3 U.S.C. § 1 ............................................................ 3, 17

Cal. Elec. Code § 3020 ............................................... 11

Miss. Code Ann. § 23-15-637 ..................................... 20

Nev. Rev. Stat. Ann. § 293.269921 ........................... 10

OTHER AUTHORITIES

A. Zavala, Why Does California’s Vote Count Take So

Long? Secretary of State Explains Delay, KCRA

(Nov. 14, 2024), https://perma.cc/488R-R7YW...... 11

B. Bowman & S. Wong, Democrats Flip Final House

Seat of the 2024 Elections, Narrowing Republicans’

Majority, NBC News (Dec. 4, 2024),

https://perma.cc/MCE4-22FK ................................ 11

B. Christie, Former San Luis Mayor Pleads Guilty to

Illegally Collecting Early Ballots in 2020 Primary,

AZCentral (June 2, 2022),

https://perma.cc/ML8R-P6EW ................................. 8

Brief of Amici Curiae Restoring Integrity and Trust

in Elections & Honest Elections Project in Support

of Petitioners, Bost v. Ill. State Bd. Of Elections,

No. 24-568, 2024 WL 5245866 (Dec. 23, 2024) ..... 16

Cong. Globe, 28th Cong., 2d Sess. (1844) ................. 19

Cong. Globe, 42nd Cong., 2d Sess. (1872)................. 18

D. Palmer, Absentee and Mail Ballots in America:

Improving the Integrity of the Absentee and Mail

Balloting, Lawyers Democracy Fund (Jan. 2019),

https://perma.cc/VSC4-TF8E ................................... 6

Delays in Nevada Vote Counting Frustrates Both

Parties, KSNV (Nov. 7, 2024),

https://tinyurl.com/36kkdsdn ................................ 10

Election Mail Readiness for the 2024 General

Election, Report Number 24-016-R24, Office of

Inspector General (July 30, 2024),

https://perma.cc/RL3L-7T87 .................................. 12

Exec. Order No. 14248,

90 Fed. Reg. 14005 (Mar. 25, 2025)..................... 3, 4

G. Fuentes, Voter Fraud Report, The Heritage

Foundation, https://perma.cc/3DLB-HMS4 ............ 8

Mail Ballot Deadlines, 2012–2022, U.S. Election

Assistance Commission,

https://perma.cc/P6KQ-RG5L .................................. 9

Mail Ballot Receipt Deadlines, Movement

Advancement Project (July 1, 2025),

https://perma.cc/Q6QF-A39P ................................... 9

N. Korecki, Nevada Results to be Delayed by Clark

County Ballot Processing, NBC News (Nov. 8,

2022), https://perma.cc/U6PX-CXHS .................... 11

P. Steinbicker, Absentee Voting in the United States,

32 Am. Pol. Sci. Rev. 898 (1938) .............................. 6

R. Berg-Andersson, Dates of Biennial Federal

Elections for Congress: From 1872 On, Green

Papers (June 3, 2009),

https://perma.cc/8W2Y-GEEA ............................... 20

R. Gonzales, North Carolina GOP Operative Faces

New Felony Charges That Allege Ballot Fraud,

NPR (July 30, 2019),

https://perma.cc/VU86-6G8J ................................... 8

R. Pildes, How to Accommodate a Massive Surge in

Absentee Voting, U. Chi. L. Rev. Online (June 26,

2020) ................................................................. 10, 13

Receipt and Postmark Deadlines for Absentee/Mail

Ballots, tbl. 11, National Conference of State

Legislatures (June 16, 2025),

https://perma.cc/9VVZ-GYSA .................................. 9

The Evolution of Absentee/Mail Voting Laws, 2020–

22, tbl. 6, National Conference of State

Legislatures (Oct. 26, 2023),

https://perma.cc/JW72-PBP6 ................................... 9

UPS Delivery Intercept Options,

https://tinyurl.com/mpem98kh .............................. 21

Voting by Mail and Absentee Voting, MIT Election

Data & Science Lab (Feb. 28, 2024),

https://perma.cc/4R83-NMDQ ............................. 6, 7

INTEREST OF AMICI CURIAE

Center for Election Confidence, Inc., is a non-profit

organization that promotes ethics, integrity, and

professionalism in the electoral process. CEC works to

ensure that all eligible citizens can vote freely within

an election system of reasonable procedures that

promote election integrity, prevent vote dilution and

disenfranchisement, and instill public confidence in

election systems and outcomes. To accomplish these

objectives, CEC conducts, funds, and publishes

research and analysis regarding the effectiveness of

current and proposed election methods. CEC is a

resource for lawyers, journalists, policymakers,

courts, and others interested in the electoral process.

CEC also periodically engages in public-interest

litigation to uphold the rule of law and election

integrity and files amicus briefs in cases where its

background, expertise, and national perspective may

illuminate the issues under consideration. *

Restoring Integrity and Trust in Elections, Inc. is

a non-profit organization with the mission of

protecting the rule of law in the qualifications for,

process and administration of, and tabulation of

voting throughout the United States. RITE supports

laws and policies that promote secure elections and

enhance voter confidence in the electoral process. Its

expertise and national perspective on voting rights,

* Under Rule 37.2, amici provided timely notice of their intention

to file this brief. Under Rule 37.6, no counsel for a party authored

this brief in whole or in part, and no person other than amici

curiae or their counsel made a monetary contribution to its

preparation or submission.

election law, and election administration will assist

the Court in reaching a decision consistent with the

Constitution and the rule of law.

The Honest Elections Project is a nonpartisan

organization devoted to supporting the right of every

lawful voter to participate in free and honest elections.

Through public engagement, advocacy, and publicinterest litigation, the Project defends the fair,

reasonable measures that legislatures put in place to

protect the integrity of the voting process. The Project

supports commonsense voting rules and opposes

efforts to reshape elections for partisan gain.

Because laws like Mississippi’s that enable return

of ballots after Election Day threaten election

integrity and accuracy, amici have a significant

interest in this case.

SUMMARY OF THE ARGUMENT

The strength of any democratic system depends on

voters trusting electoral outcomes. Voter confidence in

election integrity is essential to effective democracies,

whose legitimacy and ability to govern necessarily

depend on voter trust. Thus, as a recent Executive

Order put it, “[f]ree, fair, and honest elections

unmarred by fraud, errors, or suspicion are

fundamental to maintaining our constitutional

Republic.” Exec. Order No. 14248, 90 Fed. Reg. 14005

(Mar. 25, 2025).

Recognizing these realities, Congress for nearly

two centuries has sought to promote voter trust and

consistency by setting a single nationwide Election

Day. In Federalist No. 61, Hamilton noted that

“uniformity in the time of elections” “may be found by

experience to be of great importance to the public

welfare.” Acting under Article I, § 4, cl. 1 and Article

II, § 1, cl. 4, Congress set a single day for federal

elections: The “day for the election” for selecting

members of the House of Representatives and Senate

is the “Tuesday next after the 1st Monday in

November” (“Election Day”). 2 U.S.C. § 7; see id. § 1.

Likewise, electors of the President and Vice President

are to “be appointed, in each State, on election day, in

accordance with the laws of the State enacted prior to

election day.” 3 U.S.C. § 1.

This Court, in turn, has made clear what

Congress’s single-election-day mandate means. By the

close of Election Day, all the “combined actions of

voters and officials meant to make a final selection of

an officeholder” must occur. Foster v. Love, 522 U.S.

67, 71 (1997). Under Foster, receipt of mail-in ballots

is one of the required “final act[s] of selection” to cast

a ballot by Election Day. Receipt is the sine qua non of

a mail-in vote. A vote is not valid until it is received by

election officials. A fully completed mail-in ballot

sitting on a kitchen table is not a vote because it has

not been received.

But Mississippi and some 13 other States—

together containing almost 50% of the national

population—are not content to abide by Congress’s

mandate that all requisite actions needed to make a

“final act of selection” occur by Election Day. Id. at 72.

These States count mail-in ballots received after

Election Day—sometimes weeks after. The lags

occasioned by these drawn-out deadlines contribute to

the protracted delays in counting ballots that persist

in many States, delays that are essentially unknown

in any other developed country. Loose ballot return

rules engender all sorts of mischief and problems, not

the least of which is sowing mistrust in our election

system at a time when citizens already lack confidence

in election integrity.

The Fifth Circuit below invalidated Mississippi’s

law permitting late ballot returns as preempted by

federal law. That decision was correct, which

ordinarily might counsel against this Court’s review.

But similar challenges are percolating in many courts,

and several have disagreed with the Fifth Circuit. And

the President—after years of executive underenforcement of federal election law—has ordered that

the government enforce federal law “against States

that” count “absentee or mail-in ballots received after

Election Day.” Exec. Order No. 14248, § 7(a). Already,

a district court in Massachusetts has enjoined this

order, and other challenges are pending.

All this confirms the need for this Court’s prompt

resolution of the question presented by the petition—

before the question inevitably arrives in an emergency

posture. The 2026 federal elections are approaching,

and letting a patchwork of unconstitutional state

policies and meritless district court injunctions

against federal enforcement fester through those

elections will exacerbate inconsistencies and mistrust

in elections. The Court should grant certiorari and

affirm Foster’s holding that when a ballot is received

after Election Day, the vote was not cast by Election

Day and thus may not be counted absent a permissible

federal exception.

REASONS FOR GRANTING THE WRIT

I. This important question requires this Court’s

prompt resolution.

The question presented cuts to the heart of the

trust that Americans have in our electoral process.

This preemption question calls out for the Court’s final

resolution on a nationwide basis before emergencies

develop. Widespread mail-in voting is a recent

phenomenon, and extended ballot receipt deadlines

are an even newer innovation. These extended

deadlines threaten election mechanics and integrity.

But several courts have upheld these extended

deadlines, and in light of the President’s directive to

enforce the uniform federal deadline, continuing

challenges are certain. Delaying review threatens to

disrupt consistent, accurate election administration in

the 2026 election. “One of this Court’s roles, in

justiciable cases, is to resolve major legal questions of

national importance and ensure uniformity of federal

law.” Trump v. CASA, Inc., No. 24A884, 2025 WL

1773631, at *22 (U.S. June 27, 2025) (Kavanaugh, J.,

concurring). This case presents such a question.

A. Mail-in voting is a recent innovation with

inherent risks.

The widespread mail-in voting that has

characterized recent elections is historically unique.

As Mississippi correctly notes, “[f]or 120 years after

the Founding,” “States largely required voting to occur

in person.” Pet. 26. “[B]efore 1913, only two States had

general civilian absentee-voting laws.” Ibid. (citing P.

Steinbicker, Absentee Voting in the United States, 32

Am. Pol. Sci. Rev. 898, 898 (1938)). In the 1936

election, “only about 2% of 45 million votes were being

cast by absentee ballot,” and “[b]y 1960, it was

estimated that less than 5% of voters had cast

absentee ballots in any election.” 1 “In the 1980s,

California became the first state to allow eligible

voters to request absentee ballots for any reason at all,

including their convenience.” 2 By 2020, 32% of Americans cast a mail-in ballot. 3 And in 2022, over 85% of

1 D. Palmer, Absentee and Mail Ballots in America: Improving the

Integrity of the Absentee and Mail Balloting, at 6, Lawyers

Democracy Fund (Jan. 2019), https://perma.cc/VSC4-TF8E.

Lawyers Democracy Fund is now amicus Center for Election

Confidence.

2 Voting by Mail and Absentee Voting, MIT Election Data &

Science Lab (Feb. 28, 2024), https://perma.cc/4R83-NMDQ.

3 Ibid.

voters in Washington, Oregon, Colorado, Hawaii, and

Utah voted by mail.” 4

Mail-in voting carries significantly higher

potential for fraud and inaccuracy. As Judge Posner

explained, historically “[v]oting fraud [has been] a

serious problem in U.S. elections generally,”

sometimes “facilitated” mail-in voting. Griffin v.

Roupas, 385 F.3d 1128, 1130–31 (CA7 2004). “[E]ven

many scholars who argue that [election] fraud is

generally rare agree that fraud with [vote-by-mail]

voting seems to be more frequent than with in-person

voting.” 5 Plus, mail-in voters “are more prone to cast

invalid ballots than voters who, being present at the

polling place, may be able to get assistance from the

election judges if they have a problem with the ballot.”

Griffin, 385 F.3d at 1131.

Mail-in voting creates more links in the chain

between a ballot being created and a ballot being cast.

This creates more opportunities for honest mistakes

and political chicanery, and partisan actors of all

political stripes have used this increased opportunity

to engage in fraud and intimidation to gain an

electoral advantage.

For example, in the 2018 race for the North

Carolina’s Ninth Congressional District, the State

Board of Elections refused to certify the election and

ordered a new election “after an investigation into an

absentee ballot operation on [the Republican

candidate’s] behalf suggested that” ballots had been

4 Ibid.

5 Ibid.

“improperly collected and possibly tampered with” by

a political operative. 6

In an Arizona example, the former Democrat

Mayor of San Luis, Guillermina Fuentes, pleaded

guilty in 2022 to ballot harvesting charges. 7 Fuentes

was a political figure in her community and worked as

a political consultant. 8 Using that influence, Fuentes

persuaded voters to allow her to collect their ballots

and, in some instances, fill out ballots on behalf of the

voters. 9

In short, mail-in voting lacks a historical pedigree

and carries unique risks to the election process.

Guardrails around mail-in voting are especially

important to minimize these risks. As this Court has

recognized, there is “a compelling interest in

preserving the integrity of [the] election process,”

Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam),

so that “an individual’s right to vote is not undermined

by fraud in the election process.” Burson v. Freeman,

504 U.S. 191, 199 (1992). Protecting the integrity of

the election also instills public confidence in the

electoral process, which “encourages citizen

6 R. Gonzales, North Carolina GOP Operative Faces New Felony

Charges That Allege Ballot Fraud, NPR (July 30, 2019),

https://perma.cc/VU86-6G8J.

7 B. Christie, Former San Luis Mayor Pleads Guilty to Illegally

Collecting Early Ballots in 2020 Primary, AZCentral (June 2,

2022), https://perma.cc/ML8R-P6EW.

8 G. Fuentes, Voter Fraud Report, The Heritage Foundation,

https://perma.cc/3DLB-HMS4.

9 Ibid.

participation in the democratic process.” Crawford v.

Marion County Election Bd., 553 U.S. 181, 197 (2008).

B. Receiving votes after Election Day is a

newer development with greater risks.

Allowing mail-in votes to be received after Election

Day was largely unknown until recent decades, and

these newfound state policies are especially hazardous

to fair elections. Late ballot receipt poses many

problems for election administration—problems that

implicate election integrity and thus citizen

confidence in elections.

“During the [COVID] pandemic, with the

significant increase in absentee/mail voting, seven

states plus D.C. chose to give more time for ballots to

be received.” 10 Now, about 14 States plus D.C. broadly

count mail-in ballots that are received after Election

Day—anywhere from 5:00 p.m. the next day to 2

weeks later. 11 About 47% of the voting-age population

lives in these places. 12

Protracted delays and other election administration problems associated with late receipt of mail-in

ballots contribute to diminished confidence in

10 The Evolution of Absentee/Mail Voting Laws, 2020–22, tbl. 6,

National Conference of State Legislatures (Oct. 26, 2023),

https://perma.cc/JW72-PBP6; see also Mail Ballot Deadlines,

2012–2022, U.S. Election Assistance Commission, https://perma.

cc/P6KQ-RG5L.

11 Receipt and Postmark Deadlines for Absentee/Mail Ballots,

tbl. 11, National Conference of State Legislatures (June 16,

2025), https://perma.cc/9VVZ-GYSA.

12 Mail Ballot Receipt Deadlines, Movement Advancement Project

(July 1, 2025), https://perma.cc/Q6QF-A39P.

elections. First and most obviously, late receipt of

mail-in ballots necessarily means that ballot counting

and resolution of any disputes will be delayed. A

uniform Election Day receipt deadline “avoid[s] the

chaos and suspicions of impropriety that can ensue if

thousands of [mail-in] ballots flow in after election day

and potentially flip the results of an election.”

Democratic Nat’l Comm. v. Wis. State Legislature, 141

S. Ct. 28, 33 (2020) (Kavanaugh, J., concurring in

denial of application to vacate stay). As Professor

Pildes explained, “[l]ate-arriving ballots open up one

of the greatest risks of what might, in our era of

hyperpolarized political parties and existential

politics, destabilize the election result. If the apparent

winner the morning after the election ends up losing

due to late-arriving ballots, charges of a rigged

election could explode.” Ibid. (quoting R. Pildes, How

to Accommodate a Massive Surge in Absentee Voting,

U. Chi. L. Rev. Online (June 26, 2020)). “[D]efinitively

announc[ing] the results of the election on election

night, or as soon as possible thereafter” avoids these

risks, and promotes prompt, trustworthy outcomes.

Ibid.

These administrative dangers are not hypothetical.

Nevada accepts mail-in ballots received until the

fourth day after Election Day. Nev. Rev. Stat. Ann.

§ 293.269921(1)(b)(2). As a result, the close 2024

Senate election was plagued by delays, and the

Secretary of State laid blame on the “influx” of latearriving mail-in ballots. 13 A similar situation played

Delays in Nevada Vote Counting Frustrates Both Parties,

KSNV (Nov. 7, 2024), https://tinyurl.com/36kkdsdn.

out in the prior election. 14 The glut of ballots received

after Election Day caused bipartisan and needless

frustration that could have been prevented through

simple compliance with federal law.

California, meanwhile, featured a 2024 U.S. House

race that was not called until the first week of

December—a month after election day. 15 One key

reason why: California counts mail ballots received up

to one week after Election Day. Cal. Elec. Code

§ 3020(b). 16 Indeed, “in the 2022 midterm elections,”

half of California’s “votes were counted after Election

Day.” 17

Such delays in certifying results of a federal

election to the House or the Senate threaten

Congress’s ability to convene a full membership and to

legislate with that membership. This threat is exactly

what the limited Elections Clause failsafe was

designed to prevent: a State’s failure “to provide for

the election of representatives to the Federal

Congress.” Arizona v. Inter Tribal Council of Arizona,

Inc., 570 U.S. 1, 8 (2013). As Hamilton put it in

Federalist No. 59, “every government ought to contain

in itself the means of its own preservation,” and “an

N. Korecki, Nevada Results to be Delayed by Clark County

Ballot Processing, NBC News (Nov. 8, 2022), https://perma.cc/

U6PX-CXHS.

15 B. Bowman & S. Wong, Democrats Flip Final House Seat of the

2024 Elections, Narrowing Republicans’ Majority, NBC News

(Dec. 4, 2024), https://perma.cc/MCE4-22FK.

16 See A. Zavala, Why Does California’s Vote Count Take So Long?

Secretary of State Explains Delay, KCRA (Nov. 14, 2024),

https://perma.cc/488R-R7YW.

17 Ibid.

exclusive power of regulating elections for the national

government, in the hands of the State legislatures,

would leave the existence of the Union entirely at their

mercy.”

Late ballot receipt also risks treating voters

differently and fostering confusion in the process.

“Elections must end sometime, a single deadline

supplies clear notice, and requiring ballots be in by

election day puts all voters on the same footing.”

Democratic Nat’l Comm., 141 S. Ct. at 28 (Gorsuch, J.,

concurring in denial of application to vacate stay). As

discussed more below, mail-in voters may be able to

recall their ballots after Election Day, unlike other

voters. See Pet. 12a.

What’s more, a postmark is not always included on

returned ballot envelopes. In one New York primary,

a court found “uncontroverted evidence that

thousands

[mail-in]

ballots . . . were

not

postmarked” at all. Gallagher v. N.Y. State Bd. of

Elections, 477 F. Supp. 3d 19, 30 (S.D.N.Y. 2020); see

id. at 49 (finding “arbitrary postmarking of [mail-in]

ballots”). A recent Postal Service audit report

confirmed that this is a widespread problem, but

USPS said that it merely “tries to ensure that every

return ballot . . . receives a postmark” but would not

change its postmark operations “to accommodate”

state voting laws. 18 USPS officials have also said “that

[mail-in] ballots placed in a USPS mailbox on Election

Day after the last pick-up time would not be

18 Election Mail Readiness for the 2024 General Election, Report

Number 24-016-R24, at 11–12, Office of Inspector General (July

30, 2024), https://perma.cc/RL3L-7T87.

postmarked” that day. Gallagher, 477 F. Supp. 3d at

29. States not adhering to the Election Day deadline

essentially outsource to the Postal Service (or other

entities) procedures for ensuring proof that voters

timely mail ballots, but the Postal Service disclaims

that responsibility. All this heightens the risk for

disputes about whether a mail-in ballot received after

Election Day was properly cast.

Similarly, eliminating the postmark requirement—as Illinois has done in some cases, 10 Ill. Comp.

Stat. Ann. 5/19-8(c)—raises the risk of voting

occurring after Election Day. The Pennsylvania

Supreme Court infamously mandated that some

ballots received after Election Day without any

postmark be presumed to be timely cast unless “a

preponderance of the evidence demonstrates that it

was mailed after Election Day.” Pa. Democratic Party

v. Boockvar, 238 A.3d 345, 371–72 n.26 (Pa. 2020).

Combine that holding with Mississippi’s theory and

the potential risks of election disruption are manifest.

Last, a prompt receipt of ballots enables States to

give voters “an adequate opportunity to cure any

inadvertent defects, such as failing to sign the ballot

envelope.” Pildes, supra. “The earlier the ballots are

[received and] processed, the more time there is for

voters to do so.” Ibid.

Ballot receipt after Election Day is thus a serious—

and new—problem facing American elections.

C. Courts disagree on the legality of late

mail-in ballot receipt rules.

The lawfulness of late mail-in ballot receipt rules

has already divided courts. Especially because of a

recent Executive Order directing enforcement of the

federal statutes against such state rules, the cases are

sure to multiply. This division in the courts risks

conflict and chaos in the upcoming 2026 elections.

Such an important question of federal election law

deserves a prompt resolution by this Court, outside

the exigencies of emergency applications that would

be inevitable as the next federal elections approach.

Several courts besides the Fifth Circuit have now

considered the legality of late mail-in ballot rules,

either in the context of challenges to state law or

challenges to the recent Executive Order. Generally,

those courts have disagreed with the Fifth Circuit’s

conclusion. See, e.g., California v. Trump, 2025 WL

1667949, at *13 (D. Mass. June 13, 2025) (“[T]he text

of the Election Day statutes require only that all votes

are cast by Election Day, not that they are received by

that date.”); Bost v. Ill. State Bd. of Elections, 684 F.

Supp. 3d 720, 736 (N.D. Ill. 2023), aff’d on other

grounds, 114 F.4th 634 (CA7 2024), cert. granted sub

nom. Bost v. Ill. Bd. of Elections, No. 24-568, 2025 WL

1549779 (U.S. June 2, 2025); see also Donald J.

Trump for President, Inc. v. Way, 492 F. Supp. 3d 354,

372 (D.N.J. 2020).

As one court put it, “[b]ecause the Supreme Court

has not yet had occasion to consider this issue, the

lower courts remain divided.” League of United Latin

Am. Citizens v. Exec. Off. of the President, 2025 WL

1187730, at *50 (D.D.C. Apr. 24, 2025). And many

more cases on this issue are headed for judicial

resolution. See, e.g., Washington v. Trump, No. 2:25cv-00602 (W.D. Wash. 2025); Democratic Nat’l Comm.

v. Trump, No. 1:25-cv-00952 (D.D.C. 2025); Issa v.

Weber, No. 25-cv-598 (S.D. Cal. 2025).

This conflict between courts on an important

question of federal law—especially one that implicates

our Nation’s election process—requires this Court’s

prompt attention. Because “[c]onfidence in the

integrity of our electoral processes is essential to the

functioning of our participatory democracy,” Purcell,

549 U.S. at 4, resolution by this Court on a nationwide

basis of the procedures States must use in federal

elections is critically important. Otherwise, the 2026

elections will likely face a tangle of inconsistent state

rules and judicial decisions. And as shown by the

divisions already present on the issue—reflected in

the en banc opinions below—the conflict between

courts is unlikely to resolve itself. This conflict

warrants certiorari. See United States v. Constantine,

296 U.S. 287, 290 (1935) (emphasizing conflicts

between a Court of Appeals and district courts in

granting certiorari); see also Nat’l Ass’n of Mfrs. v.

Dep’t of Def., 583 U.S. 109, 119 (2018); Massachusetts

v. United States, 435 U.S. 444, 453 (1978) (similar);

City of Newport v. Fact Concerts, Inc., 453 U.S. 247,

257 n.14 (1981) (conflicts between district courts).

Another reason for prompt resolution is to avoid

the exigencies of deciding this important federal law

election question in an emergency posture. As

members of this Court have recognized, “forc[ing]

judges into making rushed, high-stakes, lowinformation decisions at all levels” is “not always

optimal for orderly judicial decisionmaking.”

Labrador v. Poe, 144 S. Ct. 921, 927 (2024) (Gorsuch,

J., concurring) (cleaned up) (first quotation); id. at 930

(Kavanaugh, J., concurring) (second quotation); see

also id. at 934–35 (Jackson, J., dissenting); Does 1-3 v.

Mills, 142 S. Ct. 17, 18 (2021) (Barrett, J., concurring);

Whole Woman’s Health v. Jackson, 141 S. Ct. 2494,

2500 (2021) (Kagan, J., dissenting). Further, this

Court has repeatedly said that “[w]hen an election is

close at hand, the rules of the road must be clear and

settled.” Merrill v. Milligan, 142 S. Ct. 879, 880–81

(2022) (Kavanaugh, J., concurring); see id. at 880

(collecting cases). By granting certiorari now, the

Court can give this important issue the attention it

warrants and resolve an important question of federal

election law well before the next elections.

Millions of Americans lack trust in our election

system. It is thus essential for both the courts and the

elected branches to foster trust in what our election

officials are doing. But late mail-in ballot receipt

rules—and inconsistent judicial verdicts about the

legality of those rules—do the opposite. This needless

threat to voter confidence requires this Court’s

intervention.

II. The decision below is correct.

This Court should grant certiorari and affirm the

Fifth Circuit’s decision. As two amici here recently

explained, 19 federal law generally precludes counting

mail-in ballots that arrive after Election Day. Only

Brief of Amici Curiae Restoring Integrity and Trust in

Elections & Honest Elections Project in Support of Petitioners,

Bost v. Ill. State Bd. Of Elections, No. 24-568, 2024 WL 5245866

(Dec. 23, 2024).

that understanding gives effect to Congress’s desire

for a uniform Election Day that would avoid fraud and

other mischiefs. Mississippi’s theory, by contrast,

would allow ballots to be received at any time after

Election Day without limitation. The decision below

rightly rejected that extreme theory.

A. The default federal rule is that ballots

must be received by Election Day.

The Elections Clause provides that “[t]he 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.” U.S.

Const. art. I, § 4, cl. 1. This Clause operates as “a

default provision; it invests the States with

responsibility for the mechanics of congressional

elections, but only so far as Congress declines to

preempt state legislative choices.” Foster, 522 U.S. at

69 (citation omitted).

Thus, any “assumption that Congress is reluctant

to pre-empt does not hold when Congress acts under”

the Elections Clause. Inter Tribal Council, 570 U.S. at

14. “Because the power the Elections Clause confers is

none other than the power to preempt, the reasonable

assumption is that the statutory text accurately

communicates the scope of Congress’s pre-emptive

intent.” Ibid.

The statutory text sets a specific “day for the

election” for federal elections. 2 U.S.C. § 7; see id. § 1;

3 U.S.C. § 1 (“election day”). As described by this

Court, these statutes set a “uniform federal election

day.” Foster, 522 U.S. at 72 n.3. And the Court has

held what must occur under federal law by the end of

Election Day for votes to be valid: the completion of

the “combined actions of voters and officials meant to

make a final selection of an officeholder.” Id. at 71; see

id. at 72 (Election Day is when “the final act of

selection” must take place); cf. Voting Integrity Project,

Inc. v. Keisling, 259 F.3d 1169, 1175 (CA9 2001)

(noting that this Court in Foster held “that the word

‘election’ means a ‘consummation’ of the process of

selecting an official”).

Congress considered and rejected an amendment

to 2 U.S.C. § 7 that would have permitted States to

continue voting after Election Day. See id. at 1173 &

n.42 (citing Cong. Globe, 42nd Cong., 2d Sess. 676

(1872)). Other voting statutes, like the Help America

Vote Act of 2002, “show that Congress knew how to

authorize post-Election Day voting when it wanted

to.” Pet. 20a. And statutes in other contexts “show[]

that Congress knows how to embrace a mailbox rule

when it wants to do so.” Pet. 23a. The default federal

election rule, however, is that the consummation of

votes must be finished by the end of the first Tuesday

after the first Monday in November.

But States like Mississippi push the deadline to

finalize the necessary steps for selecting a candidate

until as late as two weeks after Election Day. That is

unlawful under Foster. Because ballot receipt is one of

the official actions required for a voter to make their

selection, if it occurs after Election Day then the vote

is untimely and invalid.

Receipt is not some administrative post-vote action

like tabulation. Receipt is part of the vote itself. It is

therefore different from tabulation and certification,

which may permissibly take place after Election Day.

Those are ministerial acts of the government to

ascertain the intent of the voter, not the voter’s actual

selection of a candidate. “The election is

. . . consummated because officials know there are X

ballots to count, and they know there are X ballots to

count because the proverbial ballot box is closed. In

short, counting ballots is one of the various postelection ‘administrative actions’ that can and do occur

after Election Day.” Pet. 13a.

In sum, the Election Day statutes preempt

contrary state law and require consummation of the

voting process before the end of Election Day. State

laws like Mississippi’s that seek to extend the date of

consummation (i.e., receipt) are unlawful. And

allowing those state laws to remain in force

contradicts the uniformity that the Elections Clause

and these federal statutes are designed to ensure. The

absence of uniformity in this area may lead to “election

fraud, delay, and other problems.” Pet. 3a (citing

Cong. Globe, 28th Cong., 2d Sess. 14–15, 29 (1844)).

B. Mississippi’s theory would enable the

mischief Congress sought to avoid.

Mississippi’s arguments against the decision below

are unavailing. On Mississippi’s theory, Congress

wrote a law to ensure Election Day uniformity—

without any care about when votes would be received,

or even who would have the ballots in the meantime.

That is not a plausible understanding of federal

statutes that sought a streamlined Election Day.

Below, Judge Oldham—joined by Judges Smith,

Ho, and Duncan—noted that on Mississippi’s theory,

“States [w]ould be free to accept ballots for as long as

they’d like after Election Day.” Pet. 34a (concurring in

denial of rehearing en banc). Mississippi has no

meaningful response. Rather, it points to dates when

congressional terms start, suggesting that these

“deadlines” “force action.” Pet. 29. But members of

Congress have seen the start of their terms delayed

because of unresolved or late elections, and

Mississippi does not explain why the same

consequence could not occur here. 20 Thus, it remains

true that under Mississippi’s theory, “nothing

whatsoever prevents the States from innovating with

ever-later ballot receipt deadlines 2 months, or even 2

years, after Election Day.” Pet. 34a (Oldham, J.,

concurring in denial of rehearing en banc).

Mississippi also glosses over the fact that custody

of ballots between Election Day and a later deadline

will not be by the State, but by third parties—

potentially private parties. Under Mississippi law,

mail-in ballots can be given not only to the U.S. Postal

Service but also to private carriers “such as United

Parcel Service or FedEx Corporation.” Miss. Code

Ann. § 23-15-637(1)(a) (effective July 1, 2024). So

while Mississippi quibbles about whether the Postal

Service permits mail recall, Pet. 24, other third parties

could (and do) allow recall and rerouting. See, e.g.,

UPS Delivery Intercept Options, https://tinyurl.com/

20 See, e.g., R. Berg-Andersson, Dates of Biennial Federal Elections for Congress: From 1872 On, Green Papers (June 3, 2009),

https://perma.cc/8W2Y-GEEA (noting historical “elections being

held after the term to which [the] Congressmen were being

elected had already, technically, begun”).

mpem98kh. And some States with laws like

Mississippi’s already do not require any postmark or

other proof of mailing in at least some situations. See

10 Ill. Comp. Stat. Ann. 5/19-8(c).

What’s more, it is not obvious why Mississippi’s

reading would preclude a State from letting voters

hang on to their own ballots, then deliver them

sometime in the future (if they still want to). Though

Mississippi frames its theory of “casting” a vote as

“marking and submitting,” e.g., Pet. 1 (emphasis

added), it is unclear why putting the ballot in the

hands of another potentially private party for

provisional future delivery should matter on

Mississippi’s understanding. Mississippi’s dictionaries (Pet. 16–17) do not appear to draw the line that

Mississippi needs for its meaning of “election”—after

submission but before receipt. Cf. Pet. 8a n.5.

At a minimum, Mississippi’s theory means that

States could authorize anyone—ballot harvesters,

unions, political parties—to hold ballots for any period

of time after Election Day without supplying proof of

when they received those ballots. Mississippi’s theory

would also mean that voters could retract their votes

anytime in that period. Those results cannot be

squared with Congress’s establishment of “a uniform

election day.” Pet. 14a. The Fifth Circuit rightly

rejected Mississippi’s theory, holding that ballot

receipt is a necessary part of an election under the

default federal rule.

CONCLUSION

For these reasons, the Court should grant the

petition and affirm.

Respectfully submitted,