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

No. 24-1260

In the Supreme Court of the United States

MICHAEL WATSON, MISSISSIPPI SECRETARY OF STATE,

Petitioner,

v.

REPUBLICAN NATIONAL COMMITTEE, ET AL.,

Respondents.

_________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT

_________

BRIEF OF RESPONDENT LIBERTARIAN

PARTY OF MISSISSIPPI IN OPPOSITION

_________

T. RUSSELL NOBILE

Counsel of Record

Judicial Watch, Inc.

P.O. Box 6592

Gulfport, MS 39506

(202) 527-9866

Rnobile@judicialwatch.org

ROBERT D. POPPER

ERIC W. LEE

JUDICIAL WATCH, INC.

425 Third Street, SW

Washington, D.C. 20024

(202) 646-5172

August 11, 2025

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

QUESTION PRESENTED

Federal law sets Election Day as the first Tuesday

after the first Monday in November. 2 U.S.C. §§ 1 and

7; and 3 U.S.C. § 1. By state law, Mississippi allows

ballots to be received up to five business days after

Election Day.

The question presented here is whether

Mississippi’s practice of allowing ballots to be

received after Election Day is preempted by the

federal Election Day statutes.

ii

TABLE OF CONTENTS

Question Presented ..................................................... i

Table of Authorities .................................................. iii

Brief in Opposition ......................................................1

Statement ....................................................................3

Reasons for Denying the Petition ...............................9

I.

The Fifth Circuit Decision Was Correct

and Did Not Conflict with This Court’s

Precedent ..............................................................9

II. Though Important, the Issues Do Not

Need to be Addressed Now .................................21

Conclusion .................................................................23

iii

TABLE OF AUTHORITIES

Cases

Page(s)

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

570 U.S. 1 (2013)...................................................3

Bostock v. Clayton Cnty., 590 U.S. 644 (2020) .........10

Burson v. Freeman, 504 U.S. 191 (1992) ..................11

Chase v. Miller, 41 Pa. 403 (1862) ............................13

Democratic Nat’l Comm. v. Wisconsin

State Legislature,

141 S. Ct. 28 (2020).......................................14, 21

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022).............................................14

Doe v. Reed, 561 U.S. 186 (2010) ..............................11

Ex parte Siebold, 100 U.S. 371 (1879) ........................3

Foster v. Love,

522 U.S. 67 (1997)

................... 1, 2, 3, 5, 6, 7, 9, 10, 11, 14, 15, 16, 20

Hughey v. United States, 495 U.S. 411 (1990) .........10

K Mart Corp. v. Cartier, 486 U.S. 281 (1988) ..........10

Millsaps v. Thompson,

259 F.3d 535 (6th Cir. 2001) ................................2

iv

Newberry v. United States,

256 U.S. 232 (1921)........................... 1, 2, 6, 14, 16

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,

597 U.S. 1 (2022).................................................14

Purcell v. Gonzalez, 549 U.S. 1 (2006)..................8, 21

Republican Nat’l Comm. v.

Democratic Nat’l Comm.,

589 U.S. 423 (2020)....................... 1, 2, 8, 9, 14, 17

Smiley v. Holm, 285 U.S. 355 (1932) ..........................3

Tex. All. for Retired Ams. v. Hughs,

976 F.3d 564 (5th Cir. 2020) ..........................8, 21

U.S. Term Limits v. Thornton,

514 U.S. 779 (1995)...............................................3

United States v. Classic, 313 U.S. 299 (1941) ..........14

United States v. Craft, 535 U.S. 274 (2002) .............18

United States v. Price, 361 U.S. 304 (1960) .............18

Voting Integrity Proj., Inc. v. Bomer,

199 F.3d 773 (5th Cir. 2000) ................................2

Voting Integrity Proj., Inc. v. Keisling,

259 F.3d 1169 (9th Cir. 2001)........................... 1-2

v

Constitutional Provisions

U.S. Const. art. I, § 4...................................................3

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

Federal Statutes

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

2 U.S.C. § 7 .................................................. 1, 3, 10, 12

2 U.S.C. § 8 ..................................................................7

3 U.S.C. § 1 ...................................................... 3, 10, 12

3 U.S.C. § 21 ................................................ 3, 7, 10, 20

26 U.S.C. § 7502 ..........................................................8

52 U.S.C. § 20302 ......................................................19

52 U.S.C. § 20304 ......................................................19

52 U.S.C. § 21082 ......................................................18

Federal Regulations

39 C.F.R. § 111.1 ...................................................6, 16

39 C.F.R. § 211.2 ...................................................6, 16

vi

State Statutes and Regulations

1 Miss. Code. R. 17-2.1 ..........................................6, 16

Miss. Code Ann. § 23-15-637 ..................................2, 4

Miscellaneous

Cong. Globe, 42 Cong., 2d Sess. 676 (1872) .............20

Domestic Mail Manual, § 507.5 ............................6, 16

Domestic Mail Manual, § 703.8 ............................6, 16

Donald A. Debats, HOW AMERICA VOTED: BY VOICE,

Univ. of Virg. Inst. for Advanced Tech. in

Humanities, (2016) .............................................12

E. Evans, A HISTORY OF THE AUSTRALIAN BALLOT

SYSTEM IN THE UNITED STATES (1917) ..............12

Josiah Henry Benton,

VOTING IN THE FIELD (1915) .........................12, 13

Let Congress Do It: The Case for An Absolute Rule

of Statutory Stare Decisis,

88 Mich. L. Rev. 177 ...........................................18

Nat’l Conf. of State Legs.,

Tbl. 11: Receipt & Postmark Deadlines for

Absentee/Mail Ballots ........................................21

vii

Noah Webster, AN AMERICAN DICTIONARY OF THE

ENGLISH LANGUAGE (Joseph E. Worcester, et al.

eds. 1st ed. 1830) ................................................11

Noah Webster, AN AMERICAN DICTIONARY OF THE

ENGLISH LANGUAGE (Joseph E. Worcester, et al.

eds. 2nd ed. 1860) ...............................................11

1

BRIEF IN OPPOSITION

Respondent Libertarian Party of Mississippi

respectfully submits this opposition to the petition for

a writ of certiorari to review the judgment of the

United States Court of Appeals for the Fifth Circuit.

Petitioner Mississippi Secretary of State Michael

Watson urges this Court to grant certiorari, claiming

the Fifth Circuit’s decision is “deeply wrong and

raises an issue of exceptional importance.” Pet. 1. He

alleges a conflict with this Court’s precedents in

Foster v. Love, 522 U.S. 67 (1997), Newberry v. United

States, 256 U.S. 232 (1921), and Republican Nat’l

Comm. v. Democratic Nat’l Comm., 589 U.S. 423, 424

(2020) (per curiam) and warns of “sweeping

ramifications” for “30 States and the District of

Columbia” that accept some ballots after Election

Day. Pet. 2-3. These arguments are unpersuasive.

The Fifth Circuit correctly applied this Court’s

precedent. In Foster, this Court held that the term

“election” in 2 U.S.C. §§ 1 and 7 (“Election Day

statutes”), “plainly refer[s] to the combined actions of

voters and officials meant to make a final selection of

an officeholder.” 522 U.S. at 71. The Fifth Circuit

concluded that these actions include ballot receipt, as

receipt by election officials is the final act conveying

a voter’s choice of an officeholder. Pet. App. 10a-11a.

Once received, the voter cannot rescind or alter their

ballot, and the result is “fixed” as “the proverbial

ballot box is closed.” Id. at 10a. All circuit courts

applying Foster have similarly held that ballot receipt

by government election officials is part of the

election’s “consummation.” Id. at 12a-13a (citing

Voting Integrity Proj., Inc. v. Keisling, 259 F.3d 1169,

2

1175 (9th Cir. 2001), Voting Integrity Proj., Inc. v.

Bomer, 199 F.3d 773, 774 (5th Cir. 2000), and

Millsaps v. Thompson, 259 F.3d 535, 546 (6th Cir.

2001)). Because Mississippi’s statute, Miss. Code

Ann. § 23-15-637(1)(a) (the “Receipt Deadline”),

permits ballot receipt up to five business days after

Election Day, the election remains ongoing and has

“not been consummated.” Pet. App. 13a.

Petitioner’s primary claim that the Fifth Circuit

disregarded binding precedent is baseless. Neither

Foster nor Newberry addressed post-Election Day

ballot receipt, and Republican Nat’l Comm., 589 U.S.

at 424, concerned a state’s primary election deadline,

to which federal Election Day statutes do not apply.

Id. States may (and often do) set varied primary

election deadlines without violating federal law. Any

state extension or modification of those deadlines

does not violate the Election Day statutes. Contrary

to Petitioner’s argument, no Supreme Court case

directly addresses post-Election Day activities for

general elections. The Fifth Circuit faithfully applied

this Court’s precedent in Foster to find the Receipt

Deadline to be preempted by the federal Election Day

statutes.

Petitioner’s arguments that the decision’s

“sweeping ramifications” necessitate review are

equally unconvincing. While the case raises

important

issues,

immediate

resolution

is

unnecessary. The Fifth Circuit’s mandate is stayed in

the lower court pending resolution of this appeal,

ensuring no disruption to election procedures before

the next general election. See Republican Nat’l

3

Comm. v. Wetzel, No. 24-cv-25 (S.D. Miss. 2024) (Doc.

116)

For these reasons, the petition for certiorari

should be denied.

STATEMENT

1. The Elections Clause, U.S. Const. art. I, § 4,

cl. 1, empowers Congress to set the time for

congressional elections, overriding state regulations

when Congress acts. See Smiley v. Holm, 285 U.S.

355, 366 (1932). The Electors Clause similarly

authorizes Congress to establish a uniform date for

choosing presidential and vice-presidential electors.

U.S. Const. art. II, § 1, cl. 4. These clauses grant

“Congress ‘the power to override state regulations’ by

establishing uniform rules for federal elections,

binding on the States.” Foster, 522 U.S. at 69 (citing

U.S. Term Limits v. Thornton, 514 U.S. 779, 832-833

(1995)). Federal election laws “are paramount to

[election laws] made by the State legislature; and if

they conflict therewith, the latter so far as the conflict

extends, ceases to be operative.” Ex parte Siebold, 100

U.S. 371, 384 (1879); see also Arizona v. Inter Tribal

Council of Ariz., Inc., 570 U.S. 1, 7-18 (2013).

Congress exercised this authority in 1845 when it

enacted the first of a trio of statutes that established

a uniform national Election Day. See 2 U.S.C. §§ 1, 7;

3 U.S.C. § 1. In 2022, Congress supplemented these

with the Electoral Count Reform Act, 3 U.S.C. § 21,

permitting states to extend Election Day for force

majeure events. Id. § 21(1). Mississippi’s 2020

amendment to its Receipt Deadline, allowing

absentee ballots to be counted if received up to five

4

business days after Election Day, conflicts with this

uniform Election Day—the day which all ballots must

be cast and received by election officials—and is

preempted by it. See Miss. Code Ann. § 23-15637(1)(a).

2. Respondents, including the Republican

National Committee, the Mississippi Republican

Party, two Republican Mississippi voters, and the

Libertarian Party of Mississippi, filed suits against

Petitioner and several county officials charged with

election administration. Pet. App. 5a. They alleged

Mississippi’s Receipt Deadline is preempted by the

Election Day statutes and violates their right to stand

for public office and the right to vote under the First

and Fourteenth Amendments. Id.

After the district court consolidated the cases and

allowed intervention by two non-profit organizations

as defendants, the parties agreed on an expedited

schedule for cross-motions for summary judgment.

The district court granted Defendants’ and

Intervenor-Defendants’ motions for summary

judgment. With respect to Article III standing, the

court found that Respondents’ uncontested evidence

showed that the Receipt Deadline “harmed its

mission to secure votes for its candidates,” both by

inflicting upon it a direct economic injury, and by

causing it to divert its resources from other activities

in order “to monitor the counting of absentee ballots.”

Pet. App. 71a. On the merits, the district court held

that the Receipt Deadline did not conflict with the

Election Day statutes. Since “[a]ll that occurs after

election day is the delivery and counting of ballots

cast on or before election day,” there is “no ‘final

5

selection’ … made after the federal election day.” Pet.

App. 79a.

The Fifth Circuit unanimously reversed.

Regarding Article III standing, which was not

appealed by Petitioner, the panel found Respondents

had standing since their injuries “fit[] comfortably

within” Fifth Circuit precedent. Pet. App. 6a n.3.

In reversing the district court on the merits, the

panel faithfully followed this Court’s precedent in

Foster. There, this Court found that the Election Day

statutes preempted a Louisiana law that allowed

congressional candidates to be elected in October. 522

U.S. at 74. In interpreting the meaning of “day of the

election” within the Election Day statutes, this Court

found that “[w]hen the federal statutes speak of ‘the

election’ of a Senator or Representative, they plainly

refer to the combined actions of voters and officials

meant to make a final selection of an officeholder.” Id.

at 71. Accordingly, the “day of the election” “may not

be consummated prior to federal election day.” Id. at

72 n.4.

In interpreting this Court’s precedent, the panel

found that Foster required “official action”; “finality”;

and “consummation” by Election Day. The Receipt

Deadline failed each element. First, the panel found

that “official action” required more than “giving a

voter the means to make a final selection—such as by

offering a ballot and a method to cast it.” Pet. App. 9a.

If a ballot is “cast” before it is received by state

officials, then a voter could mark the ballot and place

it in a drawer, post it on social media, or countless

other “hypotheticals” which are obviously “absurd.”

Pet. App. 10a. It is “equally obvious” that the “official

6

action” under Foster occurs when the “state takes

custody” of the ballot. Id.

The panel distinguished Newberry, involving the

voter’s selection of a candidate rather than a public

election of an officeholder. In the latter case, “the

electorate as a whole has made an election and finally

chosen the winner” when “all voters’ selections are

received.” Pet. App. 10a. At that point, the “proverbial

ballot box is closed.” All ballots are in and the

“selection is done and final.” Id. By contrast, when

“election officials are still receiving ballots, the

election is ongoing” and the “result is not yet fixed.”

Id. The panel credited Mississippi’s own regulations

that define “an absentee ballot” as a “final vote of a

voter when, during absentee ballot processing by the

Resolution Board, the ballot is marked accepted.” Id.

at 11a (citing 1 Miss. Code. R. 17-2.1). And the fact

that the postal service allows domestic ballot “senders

to recall mail” further “undermines the State’s claim

that ballots are ‘final’ when mailed.” Id. at 12a (citing

Domestic Mail Manual, §§ 507.5, 703.8; 39 C.F.R. §

111.1 and 39 C.F.R. § 211.2).

The panel noted that in the cases that followed

Foster in various circuit courts of appeals, receipt was

a critical factor in determining whether an election

was ongoing and had not been consummated. Pet.

App. 12a-13a. While it may take additional time after

Election Day to tabulate and canvass results, the

“election is nonetheless 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.” Id. at 13a. “Receipt,”

7

therefore, “constitutes consummation of the election,”

and it must occur on or before Election Day. Id.

Finally, the panel noted that the historical

practice around the time Congress enacted the

Election Day statutes confirms its understanding

that ballot receipt is necessary to consummate an

election. Pet. App. 14a-18a. The panel rejected

Petitioner’s argument that other federal statutes

such as the Uniform and Overseas Citizens Absentee

Voting Act (“UOCAVA”) and the 1970 Amendments

to the Voting Rights Act “reinforce[] that the federal

election-day statutes do not require ballot receipt by

election day.” Pet. App. 19a. The panel noted that

these “cited statutes are silent on the deadline for

ballot receipt—and congressional silence does not

‘reinforce[]’ anything.” Id.

Given that Congress knows how to authorize postElection Day receipt in limited circumstances such as

for provisional ballots under the Help America Vote

Act of 2002 (“HAVA”), the congressional silence under

UOCAVA and the Voting Rights Act is “particularly

unhelpful.” Id. at 20a. HAVA shows that “Congress

knew how to authorize post-Election Day voting when

it wanted to do so.” Id. Likewise, Congress permitted

states to hold special elections for vacancies under 2

U.S.C. § 8, and allowed states to “modif[y] the period

of voting” in presidential elections for “force majeure

events” in 3 U.S.C. § 21(1). Id. at 22a-23a. Both

statutes show “[w]here Congress wants to make

exceptions to the federal Election Day statutes, it has

done so.” Id. at 23a.

The panel rejected Petitioner’s invitation to read

a “mailbox rule” into the Election Day statutes, where

8

a vote is effective once deposited in the mail. But

again, where Congress wants to impose such a rule in

federal statutes, it has done so, as in federal tax law

that “adopts such a mailbox rule.” Pet. App. 23a

(citing 26 U.S.C. § 7502(a)). Congress did not do so in

the Election Day statutes. The panel declined to read

this Court’s opinion in Republican Nat’l Comm., 589

U.S. at 423-424, as requiring a mailbox rule for

elections. Pet. App. 23a-24a.

The panel did not order a remedy. Instead, it

remanded to the district court for “further

proceedings to fashion appropriate relief, giving due

consideration to ‘the value of preserving the status

quo in a voting case on the eve of an election.’” Pet.

App. 24a-25a (citing Tex. All. for Retired Ams. v.

Hughs, 976 F.3d 564, 567 (5th Cir. 2020) and Purcell

v. Gonzalez, 549 U.S. 1 (2006)).

The Fifth Circuit denied rehearing en banc by a

vote of 10-5, with two dissenting and two concurring

opinions. Pet. App. 29a. After en banc review was

denied, the district court entered an agreed order

staying all proceedings in the case “pending the filing

and disposition of a petition for a writ of certiorari in

the United States Supreme Court and the conclusion

of any Supreme Court proceedings on the merits.”

Republican Nat’l Committee, et al. v. Wetzel, et al., No.

24-cv-25 (S.D. Miss. 2024) (Doc. 116).

9

REASONS FOR DENYING THE PETITION

Petitioner seeks review, claiming the Fifth

Circuit’s decision is legally erroneous law because it

conflicts with this Court’s precedent and raises issues

of exceptional importance. Pet. 1. While the issues are

significant, immediate review is unwarranted. The

decision, the only non-vacated circuit opinion to

address this issue, correctly applied precedent. Other

cases in various circuits are working their way

through the courts now, including one presently

before this Court on the issue of Article III standing.

Bost v. Ill. St. Bd. of El., No. 24-568. The decision

below properly applied this Court’s precedent and

was correct on the law. The petition should be denied.

I.

The Fifth Circuit Decision Was Correct and

Did Not Conflict with This Court’s

Precedent.

Petitioner’s primary argument for review is that

the decision below is “deeply wrong” on the merits.

Petitioner faults the Fifth Circuit for three reasons.

First, he claims it ignored the text of the Election Day

statutes and failed to give weight to any dictionary

definition of “election.” Pet. 22-23. Second, he claims

the panel’s decision was contrary to this Court’s

precedent in Foster and Republican Nat’l Comm.

Finally, he contends the panel wrongly construed the

historical practices and overlooked federal statutes

governing mail-in balloting, such as UOCAVA. Pet.

21-28. Each argument fails.

1. The panel correctly interpreted the Election

Day statutes’ text and original public meaning.

Statutory interpretation begins with the text’s plain

10

meaning. Hughey v. United States, 495 U.S. 411, 415

(1990). “[T]he court must look to the particular

statutory language at issue, as well as the language

and design of the statute as a whole.” K Mart Corp. v.

Cartier, 486 U.S. 281, 291 (1988) (citations omitted).

A fundamental canon of statutory construction is

that, unless otherwise defined, words take their

ordinary, common public meaning at the time of

enactment. See Bostock v. Clayton Cnty., 590 U.S.

644, 654-655 (2020). “Preemption thus turns on the

meaning of election within ‘the day for the election.’”

Pet. App. 8a (citing 2 U.S.C. § 7; 3 U.S.C. §§ 1, 21).

In Foster, this Court defined “the day of the

election” in the Election Day statutes. Pet. App. 9a.

“When the federal statutes speak of ‘the election’ of a

Senator or Representative, they plainly refer to the

combined actions of voters and officials meant to

make a final selection of an officeholder.” Foster, 522

U.S. at 71. “[I]f an election does take place, it may not

be consummated prior to federal election day.” Id. at

72 n.4. From this, the Fifth Circuit identified three

definitional elements to “the day of the election”: “(1)

official action, (2) finality, and (3) consummation.”

Pet. App. 9a.

Petitioner contends it was an “error” by the panel

to fail to use a dictionary definition. But this Court

already cautioned against “paring the term ‘election’

in § 7 down to the definitional bone.” Pet. App. 9a. See

Foster, 522 U.S. at 72. And any attempt to fault the

court of appeals for following the Foster majority’s

definition of “day of the election” in the Election Day

statutes is merely an implicit attack on Foster itself.

Foster acknowledged there was “room for argument

11

about just what may constitute the final act of

selection within the meaning of the law,” but did not

find it necessary to resolve that argument for all

future cases. It was not in error for the panel to follow

Foster’s definition of the Election Day statutes as the

combined actions of voters and officials meant to

select a final officeholder.

Regardless of what supplemental glosses

dictionary definitions may add to Foster, the Election

Day statutes will always require ballot receipt.

Indeed, dictionaries published before and after 1845

define “election” as “[t]he day of a public choice of

officers,” emphasizing the temporal nature of this

regulation. Noah Webster, AN AMERICAN DICTIONARY

OF THE ENGLISH LANGUAGE, 288, (Joseph E.

Worcester, et al. eds. 1st ed. 1830); and Noah

Webster, AN AMERICAN DICTIONARY OF THE ENGLISH

LANGUAGE, 383, (Joseph E. Worcester, et al. eds. 2nd

ed. 1860). These contemporaneous dictionary

definitions from around 1845 speak to the ordinary

public meaning of the term “election.”

Historical voting practices confirm that the

“election” included ballot receipt by Election Day.

“During the colonial period, many government

officials were elected by the viva voce method or by

the showing of hands, as was the custom in most parts

of Europe.” Burson v. Freeman, 504 U.S. 191, 200

(1992); see also Doe v. Reed, 561 U.S. 186, 224-27

(2010) (Scalia, J., concurring in judgment) (describing

historic voting practices). Ballot receipt after Election

Day—whether conducted viva voce or by electors

dropping balls or beans in a bowl—was simply not

12

possible. Moreover, subsequent voting innovations do

not change this original public meaning.

In the 18th and early part of the 19th century,

some states began adopting paper ballots, which

quickly became the majority practice. E. Evans, A

HISTORY OF THE AUSTRALIAN BALLOT SYSTEM IN THE

UNITED STATES, 11 (1917) (Evans); Burson, 504 U.S.

at 200. This practice generally involved voters

handwriting their votes on personal paper, which

they delivered to polling places on Election Day. Id.

at 200. These “ballots” were only cast once marked

and deposited in the ballot box or otherwise delivered

to election officials on Election Day. Id.

Viva voce and handwritten ballots remained the

majority practices until the advent of preprinted

“ticket” ballots in 1829. Evans at 11-12. As ticket

ballots became more popular, States eventually

abandoned the viva voce voting practice throughout

the 19th century, with Kentucky being the last state

to abandon it in 1890. See Donald A. Debats, HOW

AMERICA VOTED: BY VOICE, 5, Univ. of Virg. Inst. for

Advanced Tech. in Humanities, (2016).

Congress passed the Election Day statutes during

a period of time when all ballots were received by

election officials on Election Day, with the exception

of one state. In 1845, Congress passed the

“Presidential Election Day Act,” which is now codified

as 3 U.S.C. § 1. In 1872, Congress passed what is now

2 U.S.C § 7, establishing the same day for

congressional elections. During this time, only

Pennsylvania had an absentee voting law that did not

mandate receipt by Election Day. Josiah Henry

Benton, VOTING IN THE FIELD, 17, and 189-203 (1915).

13

That statute was later struck down, in part because

ballots were not being received by deputized state

officials at poll sites. Id. at 17 (discussing Chase v.

Miller, 41 Pa. 403 (1862)). This decision is what led to

the practice of deputizing servicemen as state

officials. Id.

During the Civil War, several states adopted one

of two absentee voting methods to allow “voting in the

field,” both of which were designed to facilitate ballots

being received by state election officials on Election

Day. Benton at 4, 15. Some states enacted proxy

voting whereby a soldier would mail his marked

ballot to someone back home to deliver at his home

precinct on Election Day. Id. at 15, 265. Under the

second method, states created physical poll sites near

the battlefield, providing ballot boxes and deputizing

servicemen as state election officials (e.g., bailiffs) to

receive ballots on Election Day. Id. at 15-17; see also

id. at 43 (describing Missouri’s field voting practices).

After they were cast, the ballots would be counted in

the field or sent back to the servicemen’s home states.

Even if the absentee ballots took additional time to

arrive at the servicemen’s home state, the ballot still

was received by deputized election officials in the field

on Election Day.

Petitioner completely ignores the absentee voting

practices during the Civil War and casts the rest of

the early history aside since “voting … occur[ed] in

person,” and any ballot cast would also be

“immediately received.” Pet. 26. But that is exactly

the point. Congressional legislation should be

understood by relying on the original public meaning

of its text at the time it was adopted. The “day of the

14

election” at the time Congress passed the Election

Day statutes was understood to include ballot receipt.

As the court of appeals correctly concluded, Civil War

and “[e]arly postwar iterations of absentee voting

universally required receipt by Election Day.” Pet.

App. 15a-16a.

Presumably recognizing this point, Petitioner

pivots to arguing that the change in post-Election Day

receipt by states in the 20th century was a “policy

choice[]” by the states due to voters needing to vote

away from their residences. Pet. 25-26 (citing

Democratic Nat’l Comm. v. Wisconsin State

Legislature, 141 S. Ct. 28, 34 (2020) (Kavanaugh, J.,

concurring)). But the “policy choice” arising 100 years

after Congress passed the Election Day statutes says

“nothing about the original public meaning of the

Election-Day statutes” as Congress understood them

in the 19th Century. Pet. App. 18a (citing N.Y. State

Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 70

(2022); Dobbs v. Jackson Women’s Health Org., 597

U.S. 215, 250–51 (2022)). The panel correctly rejected

Petitioner’s argument.

2. The court of appeals correctly applied Foster.

Though the issue of post-Election Day receipt was not

at issue in Foster, this Court did define the meaning

of “day of the election” in the Election Day statutes for

congressional elections. Contrary to Petitioner’s

assertion, the court of appeals application of Foster

did not conflict with existing Court precedent in

Newberry, 256 U.S. at 250, United States v. Classic,

313 U.S. 299, 318 (1941), and more recently in

Republican Nat’l Comm., 589 U.S. at 424.

15

This Court unanimously held that “Election Day”

means “the combined actions of voters and officials

meant to make a final selection of an officeholder.”

Foster, 522 U.S. at 71-72 (emphasis added). “Election

Day” can no more conclude five-business days before

Election Day, as in Foster, than it can conclude fivebusiness days after Election Day, as it does here in

Mississippi. The Election Day statutes established

the time in which “the combined actions of voters and

officials meant to make a final selection of an

officeholder” must occur. They necessarily displaced

state authority to modify or alter (even slightly)

Congress’ deadline.

Here and in Foster, the combined actions of voters

and officials includes ballot receipt by election

officials. Notably, the Court’s definition emphasized

the combined, not the unilateral, actions of voters and

officials. The unilateral actions of voters include

registering, requesting and marking ballots, and

handing a ballot to the U.S. Postal Service for

delivery. The unilateral actions of officials include

registering voters, distributing ballots, canvassing

and counting ballots, and certifying election results.

But these are not combined actions. Ballots in transit

or sitting in the postal distribution center similarly

have not been subject to combined actions. The only

moment in an election that constitutes the “combined

actions of voters and election officials” is the

depositing and receipt of ballots into the custody of

state election officials. When all qualified ballots are

received by election officials, that is the “day of the

election.” That is because when the Election Day

statutes were adopted in 1845 and 1872, the public

understood them as fixing the deadline for giving

16

their ballot to election officials. That was the only way

to interpret the electoral practices of the time. The

public would have understood that “Election Day”

was when election officials must receive all qualified

votes. Congress “mandate[d] holding all elections for

Congress and the Presidency on a single day

throughout the Union.” Foster, 522 U.S. at 70.

Foster’s interpretation is consistent with the

other holdings of this Court. In Newberry, 256 U.S. at

250, this Court ruled that ratification of the

Seventeenth Amendment did not alter the original

textual understanding of an “election” as the “final

choice of an officer by the duly qualified electors.”

(citation omitted). Reading Foster, Newberry, and the

Election Day statutes together, “the election” requires

both the final “combined actions of voters and

officials” and that these “actions” are “meant to make

a final selection,” and that all of this occurs on

Election Day. As the panel correctly noted, the

“voter’s selection of a candidate differs from the

public’s election of the candidate.” Pet. App. 10a.

An election involves finality under Foster, and a

mailed ballot cannot become final unless and until

received by the state official. Until then, the mail

ballot can be destroyed in transit, delayed, and for

domestic mailings, recalled by the voter prior to

receipt. The panel correctly noted that the U.S. Postal

Service allows for recall of mail before receipt (Pet.

App. 12a (citing Domestic Mail Manual, §§ 507.5,

703.8; 39 C.F.R. § 111.1 and 39 C.F.R. § 211.2) and

Mississippi’s own state regulations require receipt of

the ballot by election officials before it is considered

“final.” 1 Miss. Code. R. 17-2.1 (“an absentee ballot is

17

the final vote of a voter when, during absentee ballot

processing by the Resolution Board, the ballot is

marked accepted”).

Petitioner’s only response is to resort to the

purposes of the Mississippi regulations, which are to

prevent voters from mailing a ballot and then casting

a second ballot in person. Pet. 23. But the purposes of

this legislation cannot be used to contradict the text

of the regulation itself, which clearly contemplates a

ballot is final upon receipt.

Petitioner attempts a last-ditch effort to

manufacture a conflict with this Court’s decision in

Republican Nat’l Comm., 589 U.S. 423 (2020). But

that case involved a judicial extension of an absentee

ballot deadline for a primary election. The Election

Day statutes do not govern primary elections. States

can and often do hold their primary elections on

different times and dates throughout the calendar

year. The Election Day statutes here concern

Congress’ mandate that all ballots must be received

by Election Day for the general election. Far from

being an “on-point holding of this Court,” (Pet. 25),

Republican Nat’l Comm. did not even concern the

statute at issue here. If a state wishes to extend ballot

receipt for several days after the state’s primary

election, there is no Election Day statute that applies.

Congress left those deadlines squarely within the

province of the state.

Moreover, Petitioner omits that this Court in

Republican Nat’l Comm. noted the decision was only

with respect to the “narrow question before the Court”

of whether the district court’s injunction allowing

ballots to be mailed and received after the primary

18

date was lawful. 589 U.S. at 426. The panel correctly

rejected Petitioner’s argument that Republican Nat’l

Comm. proves the “act of mailing ballots equates to

voting,” which is “neither a logical nor necessary

implication of the case.” Pet. App. 24a. The

“conclusion that mailing ballots after Election Day

allows voting after the election is equally consistent

with the ballot receipt requirement.” Id.

3. Federal election statutes passed after the

Election Day statutes do not help Petitioner.

Congressional inaction does not meaningfully aid the

preemption analysis or alter the meaning of Election

Day. “[T]he views of a subsequent Congress form a

hazardous basis for inferring the intent of an earlier

one.” United States v. Price, 361 U.S. 304, 313 (1960);

United States v. Craft, 535 U.S. 274, 287 (2002); see

also Let Congress Do It: The Case for An Absolute

Rule of Statutory Stare Decisis, 88 Mich. L. Rev. 177,

186 (“The notion of silent acquiescence has long been

condemned as based on unrealistic and irrelevant

assumptions about the legislative process.”).

For example, Congress exercised its authority

when it enacted § 302 of the Help America Vote Act

(“HAVA”) of 2002. Under § 302, if a voter appears at

a poll site and a question arises about his or her

eligibility to cast a ballot, they can cast a provisional

ballot. 52 U.S.C. § 21082. Though a provisional ballot

is received at poll sites on Election Day, jurisdictions

only accept ballots after Election Day once any

questions about the voter’s eligibility are resolved. In

this way, § 302 actually reinforces the necessity of

Election Day receipt. The “fact that Congress

authorized a narrow exception” for voters with

19

suspect eligibility, “does not impliedly repeal all of the

other federal laws that impose a singular, uniform

Election Day for every other voter in America.” Pet.

App. 21a. HAVA § 302 does not allow post-Election

Day receipt. It mandates Election Day receipt.

Similarly, with UOCAVA, Congress exercised its

authority to craft a limited exception to allow the

Attorney General to seek remedies to enforce the Act.

The fact that federal courts have granted postElection Day receipt remedies in limited

circumstances for military and overseas voters under

UOCAVA does not mean states are authorized

unilaterally to grant this privilege to all voters. In

situations where a state fails to timely transmit

ballots, the United States often obtains court-ordered

relief extending receipt deadlines to ensure UOCAVA

voters get the benefit of the full 45-day period to

receive and return their ballots. But nothing in the

text of the UOCAVA explicitly authorizes states to

allow post-Election Day receipt.

UOCAVA is a statute designed for a specific set of

circumstances that have no bearing here. While 52

U.S.C. § 20302(a) sets forth state UOCAVA

responsibilities, 52 U.S.C. § 20304 sets forth the

Secretary of Defense’s responsibilities. These include

“implement[ing] procedures that facilitate” the timely

delivery of military ballots, such as the collection of

certain military ballots seven days before Election

Day for delivery “not later than the date by which an

absentee ballot must be received in order to be

counted in the election.” 52 U.S.C. § 20304(a)-(b).

Notwithstanding Petitioner’s objection, the Fifth

Circuit was right to recognize that UOCAVA (and

20

other federal statutes) are silent regarding state

absentee deadlines. Pet. 27. If Congress wanted to

extend ballot receipt deadlines for UOCAVA voters, it

could have done so. Cong. Globe, 42 Cong., 2d Sess.

676 (1872); and 95th Cong. pp. 13, 34, 59, 67, 84, and

94 (1977) (rejecting requests to extend ballot receipt

deadlines for overseas voters). And Congress has on

at least one occasion expressly authorized state

modification of the Election Day deadline. 3 U.S.C. §

21(1) (States may “modif[y] the period of voting” in

presidential elections for “force majeure events.”).

In short, the court of appeals correctly applied

existing Court precedent to find that the Receipt

Deadline is inconsistent and conflicts with the

Election Day statutes, and is preempted by them.

Petitioner has not demonstrated any reason why the

Court’s intervention is needed now. Modification of

the Election Day receipt deadline allows states to

“engage in gamesmanship, experiment with

deadlines, and renew the very ills Congress sought to

eliminate: fraud, uncertainty, and delay.” Pet. App.

34a. And many states do, with several allowing weeks

to receive ballots after Election Day, leaving electoral

results in a constant state of flux in federal races. In

passing the Election Day statutes, Congress sought

“uniform[ity]” in “holding all elections for Congress

and the Presidency on a single day throughout the

Union.” Foster, 522 U.S. at 69, 70 (1997). Mississippi’s

Receipt Deadline does not allow for such uniformity.

The panel was correct in finding it preempted.

21

II. Though Important, the Issues Do Not Need

to be Addressed Now.

While Respondent acknowledges the issues are

important, immediate review is unwarranted.

Seventeen states and the District of Columbia accept

late-arriving mail ballots after Election Day in some

capacity. See Nat’l Conf. of State Legs., Tbl. 11:

Receipt & Postmark Deadlines for Absentee/Mail

Ballots. 1

Petitioner argues that the panel’s decision should

be immediately reviewed by this Court because it

would “necessarily invalidate” the “laws in most

States and thus has significant nationwide

‘implications.’” Pet. 31 (citing Democratic Nat’l

Comm., 141 S. Ct. at 35 (Kavanaugh, J., concurring)).

This is incorrect. The Fifth Circuit’s decision would be

controlling in only three states: Mississippi,

Louisiana, and Texas. Of those, only Texas and

Mississippi allow ballots to be received after Election

Day. Moreover, the panel issued no remedy and

included instructions on remand for the district court

to give “due consideration to ‘the value of preserving

the status quo in a voting case on the eve of an

election.’” Pet. App. 24a-25a (citing Tex. All. for

Retired Ams., 976 F.3d at 567 and Purcell, 549 U.S.

at 4-5. In short, there is no guarantee that any

remedy will be issued before the 2026 general

election. And the parties agreed in the district court

1 Petitioner contends that the number of states that accept mail

ballots after Election Day is 30. However, when reviewing the

citation to the National Conference of State Legislatures, it

indicates that 17 states accept mail ballots after Election Day.

22

to stay all proceedings pending the outcome of this

petition.

Petitioner also contends that review is necessary

because the “decision below will spark litigation

challenging many States’ laws—risking chaos in the

next federal elections.” But as Respondents Vet Voice

Foundation and Mississippi Alliance for Retired

Americans, who were intervenor-defendants below,

correctly point out, cases are already ongoing

regarding a similar issue in district courts in Nevada,

Massachusetts, and North Dakota. Vet Voice

Response at 10. Petitioner acknowledges that a

similar “case ‘involv[ing] nearly identical claims’ to

those here” has been granted for review by this Court

next term. Pet. 32 (citing Bost v. Illinois Board of

Elections, No. 24-568, cert. granted, — S. Ct. —, 2025

WL 1549779 (June 2, 2025)). There is no need to grant

review in this case now while this Court considers the

jurisdictional Article III standing question next term.

23

CONCLUSION

The petition for writ of certiorari should be

denied.

Respectfully submitted,

T. RUSSELL NOBILE

ROBERT D. POPPER

Counsel of Record

ERIC W. LEE

JUDICIAL WATCH, INC.

JUDICIAL WATCH, INC.

P.O. Box 6592

425 Third Street, SW

Gulfport, MS 39506

Suite 800

(202) 527-9866

Washington, DC 20024

Rnobile@judicialwatch.org (202) 646-5172

Attorneys for Respondent

August 11, 2025