Amicus Curiae Brief — Michael Watson, Mississippi Secretary of State, Petitioner v. Republican National Committee, et al.
Supreme Court briefJan 9, 2026
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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 Writ of Certiorari to the United States Court of
Appeals for the Fifth Circuit
Brief of The Democratic National Committee as
Amicus Curiae in Support of Petitioner
MATTHEW MIYAMOTO
MUNGER, TOLLES & OLSON LLP
350 South Grand Avenue
50th Floor
Los Angeles, CA 90071
(213) 683-9519
DONALD B. VERRILLI, JR.
Counsel of Record
GINGER D. ANDERS
MUNGER, TOLLES & OLSON LLP
601 Massachusetts Ave. NW
Suite 500E
Washington, DC 20001
(202) 220-1100
Donald.Verrilli@mto.com
Counsel for Amicus Curiae
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS............................................... i
INTERESTS OF AMICUS CURIAE ........................... 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ..................................................... 2
ARGUMENT ................................................................ 4
I.
The Text of the Federal Election-Day
Statutes Does Not Forbid States from
Counting Ballots Received After Election
Day..................................................................... 4
II.
Other Federal Statutes Make Clear that
States May Count Ballots Received After
Election Day Without Creating Any
Conflict with Federal Law .............................. 13
III.
Historical Practice Confirms States Can
Count Ballots Received After Election
Day................................................................... 18
IV.
The Fifth Circuit’s Reasoning Is
Irreconcilable with This Court’s
Precedents and Federal Law .......................... 22
V.
Affirming the Fifth Circuit’s Ruling
Would Have Disastrous Consequences .......... 27
CONCLUSION .......................................................... 29
ii
TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Biden v. Nebraska,
600 U.S. 477 (2023) .............................................. 16
Bonito Boats, Inc. v. Thunder Craft
Boats, Inc.,
489 U.S. 141 (1989) .............................................. 14
Bush v. Gore,
531 U.S. 98 (2000) ............................................... 11
Democratic Nat’l Comm. v. Wis. State
Legislature,
141 S. Ct. 28 (2020) ............................................... 9
Foster v. Love,
522 U.S. 67 (1997) .................. 3, 4, 8, 11, 12, 23, 25
Harris v. Fla. Elections Canvassing
Comm’n,
122 F. Supp. 2d 1317 (N.D. Fla. 2000) ................ 11
Millsaps v. Thompson,
259 F.3d 535 (6th Cir. 2001) ................................ 24
Newberry v. United States,
256 U.S. 232 (1921) ............................................ 4, 8
Republican Nat’l Comm. v. Democratic
Nat’l Comm.,
589 U.S. 423 (2020) (per curiam) ......................... 12
iii
United States v. Classic,
313 U.S. 299 (1941) ............................................ 5, 9
United States v. Granderson,
511 U.S. 39 (1994) ................................................ 24
Voting Integrity Project, Inc. v. Bomer,
199 F.3d 773 (5th Cir. 2000) ................................ 24
Voting Integrity Project, Inc. v. Keisling,
259 F.3d 1169 (9th Cir. 2001) ........................ 13, 24
Wisconsin Cent. Ltd. v. United States,
585 U.S. 274 (2018) ................................................ 8
STATE CASES
Maddox v. Board of State Canvassers,
149 P.2d 112 (Mont. 1944) ................................... 12
FEDERAL STATUTES
2 U.S.C. 1 ..................................................................... 2
2 U.S.C. 1a ................................................................. 17
2 U.S.C. 7 ..................................................... 2, 9, 12, 25
2 U.S.C. 381 ............................................................... 17
3 U.S.C. 1 ................................................................. 2, 7
3 U.S.C. 3 ..................................................................... 7
3 U.S.C. 5(a)(2)........................................................... 17
3 U.S.C. 21(1) ............................................................. 17
iv
10 U.S.C. 1566a ......................................................... 16
26 U.S.C. 7502(a)(1) ................................................... 10
52 U.S.C. 10502(d) ..................................................... 17
52 U.S.C. 10502(g) ..................................................... 17
52 U.S.C. 20301 ................................................... 15, 16
52 U.S.C. 20302-20308 .............................................. 16
52 U.S.C. 20303(a)(1) ................................................. 15
52 U.S.C. 20304(b)(3) ................................................. 15
52 U.S.C. 20311 ......................................................... 16
52 U.S.C. 21082(a)(3)-(4) ........................................... 25
Act of Apr. 1, 1944, § 311(b)(3), 58 Stat.
136 ......................................................................... 14
Act of Sept. 16, 1942, Chapter 561, §§ 9,
12, 56 Stat. 753 ..................................................... 14
Pub. L. No. 99-410, 100 Stat. 924 ............................. 15
Pub. L. No. 111-84, Div. A, Tit. V,
Subtit. H, 123 Stat. 2318 ..................................... 16
STATE STATUTES
Cal. Elec. Code § 3000.5 ............................................ 27
Cal. Political Code § 1359(b)-(c), 1360
(James H. Derring ed. 1924) ................................ 19
v
Cal. Political Code § 1359(b-c) (James H.
Derring ed. 1924) .................................................. 21
STATUTES - OTHER
Colo. Rev. Stat. § 1-5-401 .......................................... 27
D.C. Code § 1-1001.05................................................ 27
Haw. Rev. Stat. § 11-101 ........................................... 27
Miss. Code Ann. § 23-15-637 ..................................... 10
Miss. Code Ann. § 23-15-637(1)(a) ...................... 1, 2, 4
Mo. Rev. Stat. § 11474 (1939).............................. 21, 22
Nev. Rev. Stat. § 293.269911 .................................... 27
Or. Rev. Stat. § 254.465 ............................................. 28
Utah Code Ann. § 20A-3a-202 ................................... 28
Vt. Stat. Ann. title 17, § 2537a .................................. 28
Wash. Rev. Code § 29A.40.010 .................................. 28
FEDERAL RULES
Supreme Court Rule 37 ............................................... 1
Fed. R. App. P. 4(c)(1) ................................................ 10
Fed. R. Bankr. P. 9006(e) .......................................... 10
FEDERAL REGULATIONS
6 C.F.R. 5.8(a)(1) ........................................................ 10
vi
CONSTITUTIONAL PROVISIONS
U.S. Const. Amend. XVII............................................. 5
U.S. Const. Article I, § 2, cl. 1 ..................................... 5
U.S. Const. Article I, § 2, cl. 2 ..................................... 5
U.S. Const. Article I, § 3, cl. 1 ..................................... 5
U.S. Const. Article I, § 3, cl. 3 ..................................... 5
U.S. Const. Article I, § 4, cl. 1 ............................. 3, 5, 9
U.S. Const. Article II, § 1, cl. 2 ................................ 3, 9
U.S. Const. Article II, § 1, cl. 4 .................................... 5
FEDERAL LEGISLATIVE MATERIALS
1 Annals of Congress (Joseph Gales ed.,
1834)........................................................................ 6
90 Cong. Rec. 615 (1944) ........................................... 14
116 Cong. Rec. 6996 (1970) ....................................... 14
H.R. 102, 117th Cong. § 304(d)(1)(D)
(2021) .................................................................... 16
H.R. 156, 118th Cong. (2023-2024) ........................... 16
H.R. 160, 119th Cong. (2025-2026) ........................... 16
H.R. 3436, 78th Cong. 100 (1943) ............................ 14
H.R. 4393, 99th Cong., 2d Sess. (Feb. 6,
1986)...................................................................... 15
vii
H.R. Rep. No. 99-765 (1986) ...................................... 15
STATE LEGISLATIVE MATERIALS
R.I. Session L. Chapter 1863 § 6 (1932) .................... 22
TREATISES
Restatement (Second) of Contracts §
63(a) (Am. L. Inst. 1981) ...................................... 10
OTHER AUTHORITIES
A. Scalia & B. Garner, Reading Law 252
(2012) ...................................................................... 7
Edward B. Moreton, Jr., Voting by Mail,
58 S. Cal. L. Rev. 1261 (1985) .............................. 18
Election Results, Canvass, and
Certification, United States Election
Assistance Commission (Dec. 23,
2025), https://www.eac.gov/electionofficials/election-results-canvass-andcertification ........................................................... 28
George Frederick Miller, Absentee Voters
and Suffrage Laws 179-197 (1948) ...................... 18
Helen M. Rocca, A Brief Digest of the
Laws Relating to Absentee Voting
and Registration (1928) ........................................ 20
J.H. Benton, Voting in the Field: A
Forgotten Chapter of the Civil War
(1915) .................................................................... 20
viii
Joseph P. Harris, Election
Administration in the United States
287-288 (1934) ...................................................... 18
34 Journals of the Continental Congress
304 (Roscoe R. Hill ed., 1937) ................................ 6
N. Webster, An American Dictionary of
the English Language 433 (C.
Goodrich & N. Porter eds. 1869) .................. 7, 8, 12
P. Orman Ray, Absent Voters,
8 Am. Pol. Sci. Rev. 442 (1914)............................. 18
P. Orman Ray, Absent-voting Laws,
1917,
12 Am. Pol. Sci. Rev. 251 (1918)........................... 18
P. Orman Ray, Absent-voting Laws,
18 Am. Pol. Sci. Rev. 321 (1924)........................... 18
2 Records of the Federal Convention of
1787 665-666 (M. Farrand ed. 1911) ..................... 6
Nat’l Conference of State Legislatures,
Table 11: Receipt and Postmark
Deadlines for Absentee/Mail Ballots
(last updated Dec. 24, 2025)................................. 27
U.S. Census Bureau, Voting and
Registration in the Election of
November 2024 Table 14 ...................................... 28
Universal Dictionary of the English
Language 1829 (R. Hunter & C.
Morris eds. 1897) .................................................... 8
ix
V.O. Key, Jr., Politics Parties and
Pressure Groups 672 (1947) ................................. 20
Webster’s Complete Dictionary of the
English Language 433 (C. Goodrich
& N. Porter eds. 1882) ............................................ 8
1
INTERESTS OF AMICUS CURIAE 1
The Democratic National Committee (DNC) is the
oldest continuing party committee in the United
States. Its purposes and functions are to communicate
the Democratic Party’s position on issues; protect voters’ rights; and aid the election of Democratic candidates nationwide, including by organizing citizens to
register as Democrats and vote in favor of Democratic
candidates. The DNC represents millions of voters, including nearly 250,000 registered Democrats within
Mississippi.
The DNC and its members have been directly affected by the decision below. The Fifth Circuit held
that a Mississippi statute, Miss. Code § 23-15637(1)(a), is preempted by federal law, on the theory
that federal law requires that every absentee vote be
received by an election official by election day. The
DNC, which briefed and argued the case before the
Fifth Circuit below, has a powerful interest in ensuring that States retain the authority to count ballots
completed and mailed by eligible citizens by election
day, even if those ballots arrive shortly thereafter.
That interest includes the DNC’s commitment to ensuring that uniformed military and overseas citizens’
votes are counted, including those that reach election
officials within state-specific grace periods protecting
such voters.
1
Pursuant to Supreme Court Rule 37, counsel for amicus curiae
affirm no part of this brief was authored by any party’s counsel,
and no person or entity other than amicus curiae funded its preparation or submission.
2
INTRODUCTION AND
SUMMARY OF ARGUMENT
Mississippi law requires that all mail-in ballots be
postmarked on or before the day of the election and
received no more than 5 days after the election. Miss.
Code § 23-15-637(1)(a). That framework is fully
consistent with federal statutes establishing the
Tuesday after the first Monday in November—election
day—as the date on which the “election” of members of
Congress (2 U.S.C. 1, 7) and the “appoint[ment]” of
presidential electors (3 U.S.C. 1) occurs. That is
because federal law requires only that the election—
meaning the voters’ final collective choice of
officeholder—be completed by the close of election day.
Mississippi law complies with that requirement by
directing that voters must cast their ballots by the
close of election day.
Every relevant source of interpretive guidance
indicates that the federal election-day statutes do not
preempt Mississippi law. Throughout this Nation’s
history—from the Founding, through the Civil War, to
the present—the term “election” has been universally
understood to refer to the voters’ act of choosing an
officeholder, not to any later administrative acts to
determine what choice they made.
This
understanding is reinforced by related federal statutes
that explicitly contemplate and authorize state rules
allowing post-election-day ballot-receipt deadlines.
Historical practice also confirms that States have long
permitted ballots cast by election day to arrive and be
counted afterward. Taken together, the statutory text,
related federal legislation, and historical practice
overwhelmingly confirm that federal law does not
preempt Mississippi law.
3
That should not be surprising. The Constitution
expressly confers considerable latitude on the States
to determine the “manner” in which federal elections
will be conducted, and specifically to make considered
policy choices about voting procedures when federal
law is silent. See U.S. Const. art. I, § 4, cl. 1 (“The
Times, Places and Manner of holding Elections for
Senators and Representatives, shall be prescribed in
each State by the Legislature thereof.”); U.S. Const.
art. II, § 1, cl. 2 (“Each State shall appoint, in such
Manner as the Legislature thereof may direct, a
Number of Electors.”).
The Fifth Circuit nevertheless held that the federal
election-day statutes preempt Mississippi’s ballotreceipt deadline because, in that court’s view, ballots
must be “cast by voters and received by state officials”
by election day. Pet. App. 3a (emphasis omitted). The
court of appeals made no serious effort to find a textual
basis for that preemption ruling. Instead, it purported
to read this Court’s decision in Foster v. Love—
specifically, a phrase describing an election as the
“combined actions of voters and officials,” 522 U.S. 67,
71 (1997)—as dictating the conclusion that only
absentee ballots in the hands of election officials by
election day have been validly cast. But Foster says no
such thing, and the Fifth Circuit was unable to identify
any other persuasive authority to justify its extreme
conclusion. Its decision is also, to the best of amicus
curiae’s knowledge, the first time that any court has
ever struck down a post-election-day ballot-receipt
deadline as inconsistent with federal law.
An
affirmance of that decision would vitiate the absentee
voting rules in 29 States and the District of Columbia,
upending longstanding absentee-voting practices that
facilitate the exercise of the franchise by many
millions of voters. This Court should reverse.
4
ARGUMENT
The federal election-day statutes require only that
the “election”—that is, the “final choice of an officer by
the duly qualified electors”—occur by the close of election day. Newberry v. United States, 256 U.S. 232, 250
(1921); Foster v. Love, 522 U.S. 67, 71 (1997). Voters
make their collective final choice by casting their ballots. Federal law is therefore satisfied so long as voters
make their choice by casting their ballots by the close
of election day. The federal election-day statutes do
not speak to what action constitutes casting a ballot.
That policy judgment is left to the States (consistent
with other federal statutes and the Constitution).
Along with a majority of States, Mississippi has determined that absentee ballots are cast when they are
placed in the mail and postmarked. To count, all such
absentee votes must be submitted and postmarked—
cast—by the close of election day. Mississippi law thus
ensures that the voters’ final collective choice is made,
and the election concludes, on election day. Miss. Code
§ 23-15-637(1)(a). Federal law requires nothing more.
The Fifth Circuit overrode Mississippi’s reasonable
policy choice concerning when ballots are cast. It did
so based on a misconceived analysis of the text of the
relevant federal election statutes and a serious
misreading of this Court’s decision in Foster v. Love,
and with no regard for the States’ long historical
practice of maintaining ballot-receipt deadlines that
fall after election day.
I. The Text of the Federal Election-Day Statutes
Does Not Forbid States from Counting Ballots
Received After Election Day
Throughout this Nation’s history, the term
“election” has been universally understood to refer to
the voters’ act of choosing an officeholder—not to the
5
later administrative acts of receiving or counting
ballots. See United States v. Classic, 313 U.S. 299, 318
(1941) (“From time immemorial an election to public
office has been in point of substance no more and no
less than the expression by qualified electors of their
choice of candidates.”). The Constitution uses the term
“Election” in precisely this sense, consistent with early
statements of the Framers identifying election day as
the day votes are cast and transmitted, not received or
counted. That same understanding is reflected in
dictionaries contemporaneous with the enactment of
the federal election-day statutes, further confirming
that those statutes do not prevent States from
counting ballots received after election day.
1. The Elections Clause provides that the “Times,
Places and Manner of holding Elections for Senators
and Representatives shall be prescribed” by the
States, and it excludes the “Places of chusing
Senators” from Congress’s preemptive authority over
these regulations, making clear that the “Times * * *
of holding Elections” refers to the time of that
“chusing.” U.S. Const. art. I, § 4, cl. 1. Article I also
provides that members of Congress are “chosen” by the
relevant electorate, 2 U.S. Const. art. I, § 2, cl. 1; U.S.
Const. art. I, § 3, cl. 1, and it relates the time of that
“cho[osing]” to the time of each Congressional
“election,” U.S. Const. art. I, § 2, cl. 2; U.S. Const. art.
I, § 3, cl. 3. Article II adopts a parallel formulation for
presidential elections, authorizing Congress to set “the
Time of chusing the Electors.” U.S. Const. art. II, § 1,
cl. 4. At no point do any of these provisions reference
the time of receiving or counting ballots.
The
Constitution thus uses the term “election” to refer to
2
Senators were originally chosen by state legislatures and now,
under the Seventeenth Amendment, by the people.
6
the voters’ act of choosing an officeholder, not to any
later administrative step.
Precisely the same understanding of “election” is
evident in other Founding-era documents.
On
September 17, 1787—the same day the Founders
signed
the
Constitution—the
Constitutional
Convention adopted a resolution explaining that “the
Day fixed for the Election of the President” is the day
on which the electors meet, cast their ballots, and
transmit their votes to the seat of government. A Sept.
17, 1787, Resolution of the Federal Convention
Submitting the Constitution to Congress. But the
actual “receiving, opening and counting” of those votes
was not set to occur until much later, after the new
Congress convened.
2 Records of the Federal
Convention of 1787 665-666 (M. Farrand ed. 1911)
(emphasis added). Indeed, the electors “Assemble[d]
in their respective States and Vote[d] for a President”
on February 4, 1789, 34 Journals of the Continental
Congress 304 (Roscoe R. Hill ed., 1937), and Congress
convened two months later—on April 6, 1789—“for the
sole purpose of opening the certificates, and counting
the votes of the electors of the several States in the
choice of a President and Vice-President of the United
States,” 1 Annals of Congress 16-17 (Joseph Gales ed.,
1834). Therefore, as the Framers’ own understanding
reflects, the “Day fixed for the Election” occurs when
the voters make and transmit their choice, not when
superintending government officials later receive,
open, or count the ballots.
This Founding-era understanding of “election”
carried directly into the federal election-day statutes.
In 1792, Congress enacted “An Act relative to the
Election of a President and Vice President of the
United States,” which described the time when
“electors shall be appointed in each state” as “the time
7
of choosing electors.” 1 Stat. 239. As before, the
“Election” was clearly understood to refer to the time
of the voters’ collective choice, not to any post-choice
administrative acts to identify the winning candidates.
Congress retained that language in the codification of
3 U.S.C. 3. And because Sections 1 and 3 of Title 3
address the same subject, they should be read in pari
materia to establish a coherent statutory scheme in
which “election day” is the day that marks “the time of
choosing.” See A. Scalia & B. Garner, Reading Law 252
(2012).
Congress adopted that same understanding when
it established a single federal election day. In 1845,
Congress enacted the statute now codified at 3 U.S.C.
1, fixing a uniform “election day” for presidential
electors. In doing so, Congress legislated against the
settled understanding of an “election” as occurring
when voters make their collective choice—not when
officials later receive and count ballots. Nothing in the
1845 Act suggests any departure from that established
usage. Act of Jan. 23, 1845, ch. 1, 5 Stat. 721 (to be
codified at 3 U.S.C. 1). Congress should therefore be
understood to have employed the term “election day”
in its well-understood sense. Congress carried forward
that same understanding in 1872 and 1914, when it
set a uniform day for electing Representatives and
Senators, respectively—again employing the settled
understanding of an “election” as occurring when
voters make their collective choice for a representative.
That meaning finds support in contemporaneous
dictionaries. Those dictionaries uniformly define
“election” in terms of the voters’ collective choice or
selection of an officeholder. See N. Webster, An
American Dictionary of the English Language 433 (C.
Goodrich & N. Porter eds. 1869) (“American
Dictionary”) (“[t]he act of choosing a person to fill an
8
office”); Webster’s Complete Dictionary of the English
Language 433 (C. Goodrich & N. Porter eds. 1882)
(same); Universal Dictionary of the English Language
1829 (R. Hunter & C. Morris eds. 1897) (“[t]he act of
electing, choosing, or selecting out of a number by vote
for appointment to any office”). And this Court has
consistently construed the term “election” to have that
same meaning. See Newberry v. United States, 256
U.S. 232, 250 (1921) (The “meaning of election * * *
now has the same general significance as it did when
the Constitution came into existence—final choice of
an officer by the duly qualified electors.”); Foster v.
Love, 522 U.S. 67, 71 (1997) (“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.”) (citing American
Dictionary at 433).
In analyzing the federal election-day statutes, the
Fifth Circuit acknowledged it must “interpret the
words [of these statutes] consistent with their ordinary
meaning at the time Congress enacted the statute.”
Pet. App. 8a (quoting Wisconsin Cent. Ltd. v. United
States, 585 U.S. 274, 277 (2018)). The Fifth Circuit
purported to find that ordinary meaning inscrutable,
however, because federal law “make[s] no mention of
deadlines or ballot receipt.” Pet. App. 8a n.5. But that
is precisely the point. The term “election” in the
federal election-day statutes does not, and has never
been understood to, require a particular ballot receipt
deadline or incorporate particular rules for what
voters must do to “cast” a ballot. That dictionaries
contemporaneous with the passage of the federal
election laws are silent as to such requirements
supports the view that Mississippi’s statute is not
preempted by federal law. It is not a basis for
9
disregarding the primary guides to contemporaneous
meaning.
Thus, the election is defined by actions taken by
voters—namely, their collective choice of a candidate.
That choice is made when voters cast their ballots—at
that point, each individual voter has made an
irrevocable choice, and the collective ballots cast
determine the electorate’s choice of officeholder. The
federal laws establishing a “day for the election,” 2
U.S.C. 7, therefore require only that an election be
consummated on election day—that all ballots be cast,
thus finalizing the choice of officeholder, by the close
of that day.
2. At the same time, the federal election-day
statutes are silent as to the manner by which votes are
cast. As this Court has recognized, “[l]ong before the
adoption of the Constitution,” the manner of casting
votes “had changed from time to time. There is no
historical warrant for supposing that the framers were
under the illusion that the method of effecting the
choice of the electors would never change.” Classic,
313 U.S. at 318. To the contrary, the Constitution
expressly vests States with broad discretion to
determine the manner in which elections for federal
office will be conducted. See U.S. Const. art. I, § 4, cl.
1 (“The * * * Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State
by the Legislature thereof.”); U.S. Const. art. II, § 1, cl.
2 (“Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of
Electors.”). States thus possess express constitutional
authority to make a “policy choice” to “require only
that absentee ballots be mailed by election day.”
Democratic Nat’l Comm. v. Wis. State Legislature, 141
S. Ct. 28, 34 (2020) (Kavanaugh, J., concurring in
10
denial of application to vacate stay) (emphasis in
original).
Mississippi law provides that absentee ballots are
cast when they are completed, placed in the mail, and
“postmarked.” Miss. Code § 23-15-637. To comply
with the federal election-day statutes, then, ballots in
Mississippi need only be postmarked by the close of
election day—exactly what Mississippi law requires.
In effect, Mississippi has established a mailbox rule
for absentee ballots: a ballot is “cast,” and thus the final choice of officeholder is made, when a citizen completes and mails a ballot. Such rules are widespread
across numerous areas of law. Contracts are formed
when the offeree’s acceptance is “put out of [his] possession, without regard to whether it ever reaches the
offeror.” Restatement (Second) of Contracts § 63(a)
(Am. L. Inst. 1981). Tax returns and payments are
“deemed” to be “delivered” on “the date of delivery or
the date of payment.” 26 U.S.C. 7502(a)(1). Bankruptcy documents are deemed served “upon mailing.”
Fed. R. Bankr. P. 9006(e). Certain Freedom of Information Act appeals are deemed timely based on the
date they are “postmarked” or “transmitted.” 6 C.F.R.
5.8(a)(1). And a pro se inmate’s notice of appeal is
deemed timely “if it is deposited in the institution’s internal mail system on or before the last day for filing.”
Fed. R. App. P. 4(c)(1). Nothing about the federal election-day statutes precludes the States from adopting a
similar policy choice for absentee ballots.
That conclusion is reinforced by the fact that postelection-day receipt of ballots cast by election day is
entirely consistent with the purposes of the electionday statutes. As this Court has explained, Congress
set a uniform federal election day in order to avoid “the
distortion of the voting process threatened when the
11
results of an early federal election in one State can influence later voting in other States,” as well as “the
burden on citizens” resulting from “two different election days.” Foster, 522 U.S. at 73. Neither concern is
implicated by post-election-day administrative acts—
such as receiving and counting ballots—that cannot
influence people’s votes and do not burden voters.
3. The Fifth Circuit rejected the straightforward
conclusion that the federal election-day statutes
permit States to define what constitutes casting a
ballot based primarily on its view that casting a ballot
necessarily involves the “combined actions of voters
and officials,” Foster, 522 U.S. at 71, and the official
actions necessary to deem a ballot “cast” are not
complete until voting officials receive the ballot, Pet.
App. 10a-11a. But federal law says nothing of the sort.
To the contrary, federal statutes setting a single
election day plainly leave space for officials to
examine, validate, and tally ballots after election day.
For instance, during the Civil War, numerous States
counted votes after election day. See pp. 19-20, infra
(discussing Civil-War-era practice of nine States to
receive and count ballots after election day). And that
practice has continued through the present. See Bush
v. Gore, 531 U.S. 98, 116 (2000) (Rehnquist, C.J.,
concurring) (“After the election has taken place, the
canvassing boards receive returns from precincts [and]
count the votes.”); Harris v. Fla. Elections Canvassing
Comm’n, 122 F. Supp. 2d 1317, 1325 (N.D. Fla. 2000)
(“Routinely, in every election, hundreds of thousands
of votes are cast on election day but are not counted
until the next day or beyond.”). It is therefore clear
that the “election” has occurred, for federal law
purposes, when all voters have cast their votes—even
if additional official actions must occur after election
day to ascertain the voters’ choice.
12
The Fifth Circuit resisted this conclusion by
asserting that a ballot cannot “be ‘cast’ before it is
received.” Pet. App. 10a. But the Fifth Circuit cited
no federal authority supporting that remarkable
assertion—a telling omission given that the court’s
preemption analysis depends on it. 3 Certainly the
federal statutes providing that election day “is
established as the day for the election” say nothing of
the sort. 2 U.S.C. 7. Nor does this Court’s decision in
Foster. That decision made no mention of how the “act
of choosing a person to fill an office,” Foster, 522 U.S.
at 71 (quoting American Dictionary at 433), must
occur, or what action renders the act of casting a ballot
complete. Nor does any other precedent of which
amicus is aware. To the contrary, this Court has
recognized that casting and receiving a ballot can be,
and often are, separate acts. See Republican Nat’l
Comm. v. Democratic Nat’l Comm., 589 U.S. 423, 424
(2020) (per curiam) (“Extending the date by which
ballots may be cast by voters—not just received by the
municipal clerks but cast by voters * * * fundamentally
alters the nature of [an] election.” (emphasis added)).
As a result, the federal-law requirement that ballots
The Fifth Circuit cited only Maddox v. Board of State
Canvassers, 149 P.2d 112 (Mont. 1944), for the proposition that a
ballot cannot be “cast” before state officials receive it. Pet. App.
11a-12a. But Maddox rested on a Montana-specific statutory
definition of “casting” a ballot—namely, “depositing * * * the
ballot in the custody of the election officials.” 149 P.2d at 115.
The state court confirmed the significance of this distinction:
“[S]ince the state law provides for voting by ballots deposited with
the election officials, that act must be completed on the day
designated by state and federal laws.” Ibid. In other words,
federal law required that all votes be cast by the close of election
day, and state law required that for a vote to be cast, it had to be
deposited with election officials. If anything, Maddox supports
the notion that States may decide when each voter has “cast” a
ballot for purposes of the federal election-day statutes.
3
13
must be cast by the close of election day cannot be
understood to implicitly require that they be in the
hands of state officials by that time.
The Fifth Circuit’s conclusion that Mississippi law
holds open the election beyond election day is thus
wrong legally and factually. Legally, Mississippi law
provides that all votes must be cast by the close of
election day—meaning the voters’ final collective
choice is definitively made on election day. Factually,
the postmarking requirement establishes that each
individual voter’s choice is final as a practical matter
as of election day: once the ballot is in the mailbox, the
voter cannot change the decision and the choice is thus
final. Because Mississippi law provides that absentee
ballots must be cast by election day, the statutes
comply in every particular with the federal electionday requirement.
II. Other Federal Statutes Make Clear that
States May Count Ballots Received After
Election Day Without Creating Any Conflict
with Federal Law
Other provisions of federal election law reinforce
that the election-day statutes permit ballots to be received after election day. First, Congress has enacted
various statutes demonstrating a “long history of congressional tolerance, despite the federal election day
statute,” of post-election-day receipt deadlines. Voting
Integrity Project, Inc. v. Keisling, 259 F.3d 1169, 1175
(9th Cir. 2001). Second, federal statutes governing
elections likewise confirm that election day refers to
the day voters make their choice for an officeholder,
not the date ballots must be received.
1. “[T]he case for federal pre-emption is particularly weak where,” as here, “Congress has indicated its
14
awareness of the operation of state law in a field of federal interest, and has nonetheless decided to ‘stand by
both concepts and to tolerate whatever tension there
[is] between them.’” Bonito Boats, Inc. v. Thunder
Craft Boats, Inc., 489 U.S. 141, 166-167 (1989) (citation omitted).
Congress has long known that States permit postelection-day receipt of ballots. For instance, in the
1942 Soldier Voting Act, Congress created a federal
“war ballot” subject to an election-day receipt deadline,
while at the same time permitting soldiers to vote “in
accordance with” state laws allowing post-election-day
ballot receipt. See Act of Sept. 16, 1942, ch. 561, §§ 9,
12, 56 Stat. 753, 755-756. Congress amended the Act
in 1944 to provide that federal “war ballots” would receive the benefit of “any extension of time for the receipt of absentee ballots permitted by State laws.” Act
of Apr. 1, 1944, § 311(b)(3), 58 Stat. 136, 146. In doing
so, Congress acted with full awareness that several
States had post-election-day ballot-receipt deadlines.
See H.R. 3436, 78th Cong. 100, 105-136 (1943) (discussing State post-election-day ballot-receipt deadlines); 90 Cong. Rec. 615 (1944) (recognizing “some
States will count absentee ballots 3 or 4 days after they
arrive”).
Likewise, when Congress enacted Section 202 of
the Voting Rights Act in 1970, it recognized that “40
States expressly permit absentee ballots of certain categories of their voters to be returned as late as the day
of the election or even later.” 116 Cong. Rec. 6996
(1970) (emphasis added). Yet Congress has passed legislation preserving States’ authority to do so, choosing
to work within that longstanding framework rather
than replace it with a uniform federal cutoff.
The Uniform and Overseas Citizens Absentee Vot-
15
ing Act (UOCAVA), for example, unambiguously recognizes that States have leeway to impose post-election-day ballot-receipt deadlines. See Pub. L. No. 99410, 100 Stat. 924 (as amended, 52 U.S.C. 20301 et
seq.). In 1986, Congress enacted UOCAVA, which establishes in part that members of the uniformed services and overseas citizens may vote in federal elections, even if a printed ballot fails to arrive before election day. See 52 U.S.C. 20303(a)(1). To implement
that guarantee, UOCAVA provides that “a Federal
write-in absentee ballot shall be submitted and processed in the manner provided by law for absentee ballots in the State involved,” and States must accept and
count such a ballot unless a separate “State absentee
ballot * * * is received * * * not later than the deadline
for receipt of the State absentee ballot under State
law.” Id. § 20303(b)(3). In so doing, Congress expressly recognized that “[t]welve [States] ha[d] extended the deadline for the receipt of voted ballots to a
specified number of days after the election.” Uniformed and Overseas Citizens Absentee Voting: Hearing Before the H. Subcomm. on Elections on H.R. 4393,
at 21, 99th Cong., 2d Sess. (Feb. 6, 1986); see also H.R.
Rep. No. 99-765, at 8 (1986) (“[S]everal States accept
absentee ballots, particularly those from overseas, for
a specified number of days after election day.”). Thus,
instead of imposing a uniform federal receipt deadline
tied to election day, Congress incorporated each
State’s own ballot-receipt deadline, thereby recognizing state authority to count ballots received after election day.
In 2009, Congress reaffirmed that states have latitude to count ballots received after election day when
it amended UOCAVA with the Military and Overseas
Voter Empowerment (MOVE) Act, which establishes
procedures for federal collection and transmittal of
16
ballots cast by absent overseas uniformed services voters. See Pub. L. No. 111-84, Div. A, Tit. V, Subtit. H,
123 Stat. 2318 (10 U.S.C. 1566a; 52 U.S.C. 20301,
20302-20308, 20311). Under those provisions, a completed absentee ballot must be collected by a federal
official by the “seventh day preceding” the “general
election” and then transferred to the U.S. Post Office.
52 U.S.C. 20304(b)(3). Then, the ballot must be delivered to appropriate election officials “not later than the
date by which an absentee ballot must be received in
order to be counted in the election.” Id. § 20304(b)(1)
(emphases added). Congress could hardly have been
clearer about its understanding that the “election” occurs on a particular date, but the date on which a ballot must be “received” to be “counted” may be a different date—one that is determined by state law. Ibid.
In other words, Section 20304(b)(1) recognizes that the
“election” does not necessarily include the act of receiving the votes, so the statute expressly provides States
leeway to determine a receipt deadline. 4
2. Other federal statutes governing elections likewise focus on election day as the time of the voters’ collective choice and provide States leeway with respect
to ballot-receipt deadlines.
Additionally, Congress has considered legislation that would
impose a federal-election-day ballot-receipt deadline.
The
Restoring Faith in Elections Act would require absentee ballots
to “be received by the appropriate election official no later than
the time polls close on the date of the election.” H.R. 102, 117th
Cong. § 304(d)(1)(D) (2021); accord H.R. 156, 118th Cong. (20232024); H.R. 160, 119th Cong. (2025-2026). Congress is thus aware
that federal law does not require ballots to be received on election
day, and that States permit ballots to be received after election
day. See Biden v. Nebraska, 600 U.S. 477, 503 (2023) (recognizing
awareness of an issue based on legislation Congress “considered”
but “chose[] not to enact”).
4
17
Several provisions in Titles 2 and 3 confirm this understanding. A number equate the election of an officeholder with the voters’ choice. See 2 U.S.C. 1a (“the
executive of the State from which any Senator has
been chosen to certify his election”), 381 (“election”
means “an official general or special election to choose
a Representative”). Similarly, Section 21 of Title 3 provides that States may “modif[y] the period of voting”
for president based on force majeure events, and when
they do, “election day” shall include the “modified period of voting.” 3 U.S.C. 21(1). Thus, for federal purposes, “election day” is when “voting” occurs; there is
no mention of administrative actions such as receiving
or counting ballots. See also 3 U.S.C. 5(a)(2) (reporting
the number of votes “given or cast,” which suggests
choice is the key inquiry).
Section 202 of the Voting Rights Act similarly reinforces that Congress has not imposed a uniform election-day receipt deadline. That provision requires
States to adopt absentee voting procedures for presidential elections and requires ballots to be counted if
received “not later than the time of closing of the polls
in such State on the day of such election.” 52 U.S.C.
10502(d). If the Fifth Circuit were correct about the
meaning of the federal election-day statutes, this provision would be surplusage because ballots must necessarily be received before the end of election day.
Even more to the point, Section 202(g) confirms that
States retain the authority to adopt “less restrictive
voting practices,” further confirming that States may
set rules to receive and count ballots after election day.
52 U.S.C. 10502(g).
Taken together, these provisions show that when
Congress has wished to regulate the timing of ballot
receipt, it has done so expressly, and always in a manner that preserves state authority to set post-election-
18
day ballot-receipt deadlines. Congress’s consistent focus on the moment of voters’ choice as the defining feature of an election, coupled with its repeated recognition that States may count ballots that arrive after
election day, confirms that the federal election-day
statutes do not impose a receipt cutoff.
III. Historical Practice Confirms States Can
Count Ballots Received After Election Day
Throughout our history, States have exercised
broad discretion to structure absentee voting, including by adopting post-election-day ballot-receipt deadlines. This longstanding and widespread practice reflects a consistent historical understanding: although
the voters’ final choice must be made by election day,
federal law has never been understood to require that
ballots be received by that date.
1. States have permitted forms of absentee balloting throughout most of this Nation’s history. See Edward B. Moreton, Jr., Voting by Mail, 58 S. Cal. L. Rev.
1261, 1261-1262 (1985); cf. George Frederick Miller,
Absentee Voters and Suffrage Laws 179-197 (1948)
(collecting laws, enacted as early as 1635, addressing
indirect voting). All but four States had absentee voting provisions by 1924. P. Orman Ray, Absent-voting
Laws, 18 Am. Pol. Sci. Rev. 321, 321 (1924). For civilian voting provisions, these States fell into one of “two
general types, namely, the Kansas and the North Dakota types.” P. Orman Ray, Absent-voting Laws, 1917,
12 Am. Pol. Sci. Rev. 251, 251 (1918). States in both
camps permitted votes submitted by election day to be
first received by an election official at a later date.
For example, statutes in the first (Kansas) camp allowed for post-election-day ballot receipt. P. Orman
Ray, Absent Voters, 8 Am. Pol. Sci. Rev. 442, 442-443
(1914); see Joseph P. Harris, Election Administration
19
in the United States 287-288 (1934). Those statutes required absentee voters to appear at a polling place on
election day, swear they were qualified voters, and
complete ballots. See Ray, Absent Voters, 8 Am. Pol.
Sci. Rev. at 443. Then, the votes would be “sent by
mail to the proper official” before “the result of the official canvass [wa]s declared.” Ibid. This process inevitably took several days—indeed, ballots were not
even required to be mailed until “the day following
[election day].” Kan. Gen. Stat. § 4325 (R.E. McIntosh
ed. 1922) (emphasis added).
While statutes in the second (North Dakota) camp
generally required absentee ballots to be received by
election day, that was not a uniform practice. See Ray,
Absent-voting Laws, 1917, 12 Am. Pol. Sci. Rev. at 254,
258-259. In many States, absentee voters were required to complete their ballots before “any officer” authorized to administer oaths (not necessarily an election official) and then mail the ballots to their polling
place to be opened on election day. Id. at 257-258. But
there were exceptions. California and Pennsylvania
deferred the “counting of absent[ ]voters’ ballots” until
“the official canvass.” Ray, Absent-Voting Laws, 18
Am. Pol. Sci. Rev. at 322. The California and Pennsylvania laws thus more “closely conform[ed] to the Kansas (1911) statute.” Ibid. And the California statute
required voters to mail their own ballots, which would
be received by an official for the first time after election
day. See Cal. Political Code § 1359(b)-(c), 1360 (James
H. Derring ed. 1924), https://bit.ly/4cYwCTp.
2. Many States also passed statutes designed to allow “qualified voters in military service to vote outside
their home precincts.” See P. Orman Ray, Military Absent-Voting Laws, 12 Am. Pol. Sci. Rev. 461, 461 (1918).
During the Civil War, several States enacted laws ensuring that soldiers could vote outside their States.
20
See generally J.H. Benton, Voting in the Field: A Forgotten Chapter of the Civil War (1915). A common
model authorized “t[aking] the ballot box to the soldier
in the field and permitt[ing] him to cast his ballot into
it.” Id. at 15. Under this system, “a sufficient period
would elapse between the day of the election, which
was the day on which the soldiers were to vote in the
field, and the counting of the votes of the State by the
officers who were to count them, to enable the votes to
reach them.” Id. at 318. As a result, States routinely
authorized post-election-day receipt windows: North
Carolina accepted ballots received within “twenty
days” after election day; Alabama “two or three weeks
after the election,” Georgia “within fifteen days after
the election,” South Carolina on “the first Saturday
next ensuing” after the election, Florida on “the twentieth day after the election,” and Maryland “fifteen
days after the election.” Id. at 317-318.
In a similar vein, Nevada, Rhode Island, and Pennsylvania authorized soldiers to cast their votes on election day, with their ballots then transported to their
home States and counted even though they were not
received until days later. Benton, Voting in the Field
at 171-172 (Nevada), 186-187 (Rhode Island), 189-190
(Pennsylvania). And contrary to the Fifth Circuit’s assumption, these votes were received and transported
by military personnel—not election officials—thus refuting the Fifth Circuit’s mistaken conclusion that “official receipt marked the end of voting.” Pet. App. 16a.
3. All told, States have been enacting post-electionday ballot-receipt deadlines for over a century. See
V.O. Key, Jr., Politics Parties and Pressure Groups 672
(1947); cf. Helen M. Rocca, A Brief Digest of the Laws
Relating to Absentee Voting and Registration (1928).
After the Civil War, ballots often could be received after election day:
21
• In California, a voter could appear before
“any notary public” to complete his ballot,
which was then “to be by him returned by
registered mail” to election officials. Cal.
Political Code § 1359(b-c) (James H. Derring ed. 1924), https://bit.ly/4cYwCTp.
The completed ballot had to be received
“within fourteen days after the date of
the election.” Id. § 1360.
• In Kansas, a voter could cast his vote in
the presence of “any officer” authorized to
administer oaths in “Kansas or * * * the
United States.” Kans. Rev. Stat. § 251106 (Chester I. Long, et al., ed. 1923),
https://bit.ly/4ecZRTl. Then, the vote
must have been “mailed in sufficient season that it shall reach” election officials
“before the tenth day following such election.” Ibid.
• In Maryland, military voters had to com-
plete their ballot in the presence of a “witness,” and “then mail” the ballot to the
Secretary of State. Md. Code Ann., Pub.
Gen. L., art. 33, § 229 (George P. Bagby,
ed. 1924), https://bit.ly/4cY3Ty2. The
ballot had to be “marked on or before election day, and mailed in time to arrive at
its destination not more than 7 days after
election day.” Ibid.
• In Missouri, a voter must complete an af-
fidavit and ballot before “an officer authorized by law to administer oaths.” Mo.
Rev. Stat. § 11474 (1939), https://bit.ly/
22
3ZdylRk. Then, the ballot could be “sent
by mail” “by such voter,” or “if more convenient,” hand delivered to election officials. Ibid. (emphasis added). “[I]n any
event,” the ballot had to be received by
election officials “not later than 6 o’clock
p. m. the day next succeeding the day of
such election.” Ibid.
• In Rhode Island, a voter could vote absen-
tee “on * * * election day” before “some officer” authorized to administer oaths.
R.I. Session L. ch. 1863 § 6 (1932),
https://bit.ly/4cYBzvn. Then, the voter
had to “mail” the completed ballot “on
* * * election day” so that it could be received by “midnight of the Monday following said election.” Ibid.
The historical record thus makes clear that States
have uncontroversially employed post-election-day
ballot-receipt deadlines for most of this Nation’s
history—and Congress has been well aware of that
practice. That these post-election-day ballot-receipt
deadlines have existed for so long, without any
suggestion they were inconsistent with federal law, is
compelling evidence that federal law has never been
understood to require that ballots be received by
election day.
IV. The
Fifth
Circuit’s
Reasoning
Is
Irreconcilable with This Court’s Precedents
and Federal Law
The Fifth Circuit’s reasoning cannot be reconciled
with the federal election-day statutes or this Court’s
decisions interpreting them. Indeed, the Fifth Circuit
23
placed heavy reliance on this Court’s decision in Foster
in precisely the manner Foster cautioned against;
concocted an atextual distinction between ballots
received before and after election day; and drew an
unfounded line between receiving ballots postmarked
by election day and the various administrative actions
that States have always performed after election day
ends. Under the Fifth Circuit’s approach, States
would be forced to abandon longstanding absenteevoting rules, and upend settled expectations about
how federal elections have functioned for more than a
century. Nothing in this Court’s decisions, or in the
federal election-day statutes themselves, remotely
justifies such a perverse outcome.
1. Though the Fifth Circuit purported to be
“guid[ed]” by this Court’s decision in Foster, the three
“definitional elements” it divined from Foster cannot
be found in this Court’s opinion. Pet. App. 8a-9a. That
is because they were plucked out of thin air. Even
worse, the purpose for which the Fifth Circuit
deployed those “definitional elements” disregards the
caution
that
accompanied
Foster’s
carefully
circumscribed holding. Foster held only that the
federal election-day statutes preempted a Louisiana
voting system in which the election was completed
before election day. This Court disclaimed any effort
to “isolat[e] precisely what acts a State must cause to
be done on federal election day (and not before it) in
order to satisfy the statute.” 522 U.S. at 72; see also
ibid. (noting it did not need to “par[e] the term
‘election’ * * * down to the definitional bone” to resolve
the case before it).
Foster therefore cannot bear the weight the Fifth
Circuit placed upon it, particularly given the wealth of
textual and historical evidence cutting against the
Fifth Circuit’s understanding of Foster’s “definitional
24
elements.” See Millsaps v. Thompson, 259 F.3d 535,
546 (6th Cir. 2001) (rejecting attempt to “finely parse
Foster’s language” in light of the “Court’s express” instruction not to).
2. Statutes should be interpreted to reach “‘a sensible construction’ that avoids attributing to [Congress] either ‘an unjust or an absurd conclusion.’”
United States v. Granderson, 511 U.S. 39, 56 (1994)
(citation omitted). The Fifth Circuit’s construction violates that principle.
First, the Fifth Circuit offered no principled, textually-grounded basis for treating ballots received before
election day differently from ballots received after it.
If, as the Fifth Circuit posited, “the election is ongoing”
throughout the duration in which “election officials are
still receiving ballots,” Pet. App. 10a, it would necessarily follow that counting ballots received before election day would expand the “election” to encompass a
period before the congressionally prescribed day. But
every court to address that issue has held that the federal election-day statutes do not preempt state laws
permitting ballots to be received before election day.
See Voting Integrity Project, Inc. v. Bomer, 199 F.3d
773, 777 (5th Cir. 2000) (Texas law); Millsaps v.
Thompson, 259 F.3d 535, 549 (6th Cir. 2001) (Tennessee law); Voting Integrity Project, Inc. v. Keisling, 259
F.3d 1169, 1176 (9th Cir. 2001) (Oregon law). For good
reason. Otherwise, absentee ballots could be counted
only if they fortuitously arrived in the mail on election
day—a nonsensical result that would disenfranchise
countless voters.
The Fifth Circuit tried to work its way around that
glaring problem by suggesting the “election” must be
final as of election day but can begin earlier. See Pet.
App. 10a-11a. But that distinction lacks any basis in
25
the statutory text. Title 2, Section 7 provides that election day is “the day for the election.” 2 U.S.C. 7 (emphasis added). That text cannot plausibly be read to
proscribe counting ballots received after election day
but allow counting ballots received before it. And
nothing in Foster, which addressed only a statute concluding the election before election day, suggests any
such distinction. 522 U.S. at 72.
Second, as noted above, nothing in the federal election-day statutes forbids state elections officials from
taking actions necessary to determine the voters’
choice—canvassing, examining, and tallying ballots—
after election day. Cf. 52 U.S.C. 21082(a)(3)-(4) (requiring ballot validity determinations after election
day). But the Fifth Circuit’s decision lacks any meaningful distinction between counting ballots and receiving them. The court of appeals recognized—as it
must—that “[not] all the ballots must be counted on
Election Day.” Pet. App. 10a. The necessary premise
of this concession is that the federal designation of
election day as “the day for the election,” 2 U.S.C. 7,
does not speak to official actions like counting, canvassing, and certifying votes and therefore does not
limit when they may occur. But if that is true of backend official actions that are necessary to determine
election results, there is no reason why receipt of ballots by mail would be any different. Certainly nothing
in the statutory text distinguishes ballot receipt from
ballot counting or canvassing.
The Fifth Circuit attempted to avoid this conclusion by reasoning that “the proverbial ballot box” remains open “while election officials are still receiving
ballots,” but “the result is fixed when all of the ballots
are received” because “[t]he selections are done and final.” Pet. App. 10a. But once a state has provided that
a vote is cast by placing the ballot in the mail, as here,
26
the voters’ final selection is “done and final” upon mailing of the absentee ballots—and checking the incoming
mail for those already-cast ballots is just as administrative as tallying them.
The court of appeals also thought it necessary to
forbid the counting of ballots arriving after election
day in order to prevent voters from recalling ballots
that were mailed but not yet delivered by election day.
That farfetched concern—which respondents raised
below only in passing in their reply brief—cannot be
attributed to state law. Instead, it relies on how
USPS, a federal agency, applies its package-interception procedures to election mail. See Pet. App. 12a.
Even if USPS’s procedures somehow undermined the
“finality” of Mississippi’s election process, the only
proper remedy would be to change those procedures to
exempt election mail. In any event, no one has presented any evidence in this case (or as far as amicus
knows in any other) that an absentee voter has ever
recalled a mailed ballot in this manner—or even, as a
practical matter, that one could. And even if a random
individual were somehow able to pull off the feat of recalling an absentee ballot in this manner, that de minimis change would not alter the fact that the electorate’s final collective choice was still made on election day. That the Fifth Circuit would feel the need to
rely on such fanciful hypothetical risks says a great
deal about the soundness of its reasoning.
Petitioner’s construction avoids each of the serious
anomalies that necessarily follow from the Fifth
Circuit’s reading. The simple fact is that federal
election-day statutes say nothing about when ballots
must be received. There is therefore no need to juryrig the construction of federal law to justify counting
ballots received before election day and not ballots
received after election day. Nor is there any need to
27
distinguish between receipt and counting after
election day. Rather, the election-day statutes merely
require the voting system that has been in place for
more than a century: all votes must be cast by election
day.
V. Affirming the Fifth Circuit’s Ruling Would
Have Disastrous Consequences
Today, at least 29 States and the District of
Columbia count mailed ballots that arrive after
election day.
See Nat’l Conference of State
Legislatures, Table 11: Receipt and Postmark
Deadlines for Absentee/Mail Ballots (last updated
Dec. 24, 2025), https://bit.ly/3z9SAVs. 5
And as
discussed above, States have been enacting such postelection-day ballot-receipt deadlines for more than a
century. See pp. 18-22, supra. States and voters have
therefore developed a settled expectation that a timely
ballot will be counted, even if it arrives shortly after
election day.
Election officials design mailing
schedules, voter-education materials, and processing
timelines on that understanding, and countless voters
plan when and how to vote in reliance on these wellestablished rules and practices.
This established practice reflects the realities of
modern elections. Millions of Americans—including
military voters stationed away from home, overseas
citizens, rural voters, elderly and disabled voters, and
voters lacking reliable transportation—rely on
absentee voting. And several States conduct all
elections by mail. 6 Indeed, in the November 2024
Fifteen of those States provide this accommodation only to
uniformed military and overseas voters. See id.
5
See Cal. Elec. Code § 3000.5; Colo. Rev. Stat. § 1-5-401; D.C.
Code § 1-1001.05; Haw. Rev. Stat. § 11-101; Nev. Rev. Stat.
6
28
election, approximately 29 percent of all voters voted
by mail. U.S. Census Bureau, Voting and Registration
in the Election of November 2024 Table 14,
https://www.census.gov/data/tables/timeseries/demo/voting-and-registration/p20-587.html
(last visited Jan. 8, 2026). And among non-voters
surveyed by the United States Census Bureau, 42.5
percent cited barriers that absentee voting is
specifically designed to ameliorate—such as
transportation difficulties, inconvenient polling
places, bad weather, illness or disability, being out of
town, or having busy schedules. Id. at Table 10.
Allowing States to count ballots that are timely cast
but later delivered is therefore essential to preserving
these citizens’ ability to participate on equal terms in
federal elections. It also promotes electoral integrity
by ensuring that election outcomes reflect the choices
actually made by eligible voters, and it enables States
to administer elections in a manner responsive to local
conditions and voters’ practical needs.
Affirming the Fifth Circuit’s ruling would upend
the considered policy judgment of numerous States
about how best to administer elections. 7 Those States
have determined—based on longstanding experience
§ 293.269911; Or. Rev. Stat. § 254.465; Utah Code Ann. § 20A-3a202; Vt. Stat. Ann. tit. 17, § 2537a; Wash. Rev. Code § 29A.40.010.
At the same time, affirming the Fifth Circuit’s decision would
not meaningfully speed the announcement of election results.
Delays in reporting final results are largely driven by routine
administrative processes, such as verifying signatures on
absentee ballots, resolving provisional ballots, addressing votereligibility issues, and tabulating large volumes of ballots. See
Election Results, Canvass, and Certification, United States
Election
Assistance
Commission
(Dec.
23,
2025),
https://www.eac.gov/election-officials/election-results-canvassand-certification (discussing post-election-day administrative
processes).
7
29
with absentee voting, the needs of their constituents,
and the practical uncertainties inherent in mail
delivery—that their electorates are best served by
allowing the timely casting of ballots by election day,
coupled with short post-election-day receipt windows.
Nothing in the federal election-day statutes compels
States to abandon those judgments and impose an
election-day receipt deadline. The Court should reject
the Fifth Circuit’s unprecedented interpretation and
reaffirm what has long been understood: federal law
does not require that ballots be received by election
day.
CONCLUSION
The Court should reverse the judgment of the court
of appeals.
Respectfully submitted,
MATTHEW MIYAMOTO
MUNGER, TOLLES & OLSON LLP
350 South Grand Avenue
50th Floor
Los Angeles, CA 90071
(213) 683-9519
DONALD B. VERRILLI, JR.
Counsel of Record
GINGER D. ANDERS
MUNGER, TOLLES & OLSON LLP
601 Massachusetts Ave. NW
Suite 500E
Washington, DC 20001
(202) 220-1100
Donald.Verrilli@mto.com
Counsel for Amicus Curiae
JANUARY 9, 2026
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.