Amicus Curiae 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 Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit

————

BRIEF OF THE DISTRICT OF COLUMBIA,

CALIFORNIA, COLORADO, CONNECTICUT,

DELAWARE, HAWAII, ILLINOIS, MARYLAND,

MASSACHUSETTS, MICHIGAN, MINNESOTA,

NEVADA, NEW JERSEY, NEW MEXICO, NEW

YORK, NORTH CAROLINA, OREGON, RHODE

ISLAND, VERMONT, AND WASHINGTON AS

AMICI CURIAE IN SUPPORT OF PETITIONER

————

BRIAN L. SCHWALB

Attorney General for the

District of Columbia

CAROLINE S. VAN ZILE*

Solicitor General

ASHWIN P. PHATAK

Principal Deputy

Solicitor General

LEO W. RASSIEUR

Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL

400 6th Street, NW, Suite 8100

Washington, D.C. 20001

(202) 724-6609

caroline.vanzile@dc.gov

* Counsel of Record

January 9, 2026

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

i

QUESTION PRESENTED

Whether the federal election-day statutes preempt

a state law that allows ballots that are cast by federal

election day to be received by election officials after

that day.

ii

TABLE OF CONTENTS

QUESTION PRESENTED .................................... i

TABLE OF CONTENTS....................................... ii

TABLE OF AUTHORITIES ................................ iv

INTRODUCTION AND

INTEREST OF AMICI CURIAE .................... 1

SUMMARY OF ARGUMENT .............................. 3

ARGUMENT ......................................................... 5

I. Respondents’ Rule Threatens Ballot-Receipt

Laws In A Majority Of States, Undermining

States’ Sovereignty And Efforts to Ensure

Military Service Members May Vote ........... 5

A. Most states and the District of Columbia

count at least some absentee ballots that

are mailed by—but arrive after—election

day ............................................................. 5

B. Reading the federal election-day statutes

to preempt state ballot-receipt deadlines

would subvert state sovereignty and

imperil the franchise of military service

members stationed abroad ....................... 9

II. The Federal Election-Day Statutes Do Not

Preempt State Ballot-Receipt Deadlines ... 15

A. Nothing in the text of the federal electionday statutes preempts state ballot-receipt

deadlines ................................................. 15

B. Constitutional text and tradition empower

states to set deadlines for receipt of

absentee ballots ...................................... 19

iii

C. Congress repeatedly acquiescing in state

ballot-receipt deadlines further reinforces

their validity ........................................... 23

CONCLUSION ................................................... 27

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm’n,

576 U.S. 787 (2015) .............................................. 10

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

570 U.S. 1 (2013) .................................................. 10

Barclays Bank PLC v. Franchise Tax Bd. of Cal.,

512 U.S. 298 (1994) .............................................. 23

Bond v. United States,

572 U.S. 844 (2014) .............................................. 26

Bost v. Ill. State Bd. of Elections,

145 S. Ct. 2751 (2025) ........................................ 6, 7

Chiafalo v. Washington,

591 U.S. 578 (2020) ........................................ 19, 20

Cook v. Gralike,

531 U.S. 510 (2001) .............................................. 20

Democratic Nat’l Comm. v. Wis. State

Legislature,

141 S. Ct. 28 (2020) ................................................ 3

Dunn v. Blumstein,

405 U.S. 330 (1972) .............................................. 12

Gregory v. Ashcroft,

501 U.S. 452 (1991) .......................................... 1, 19

v

Johnson v. Transp. Agency,

480 U.S. 616 (1987) .............................................. 25

Kimbrough v. United States,

552 U.S. 85 (2007) ................................................ 24

Medtronic, Inc. v. Lohr,

518 U.S. 470 (1996) .............................................. 25

Newberry v. United States,

256 U.S. 232 (1921) .............................................. 17

Perry v. Judd,

471 F. App’x 219 (4th Cir. 2012) .......................... 11

Perry v. Perez,

565 U.S. 388 (2012) ................................................ 1

Republican Nat’l Comm. v. Burgess,

No.3:24-cv-198, 2024 WL 3445254 (D. Nev.

July 17, 2024) ......................................................... 6

Roundebush v. Hartke,

405 U.S. 15 (1972) .................................................. 1

Shelby County v. Holder,

570 U.S. 529 (2013) .......................................... 1, 19

Smiley v. Holm,

285 U.S. 355 (1932) .............................................. 20

Storer v. Brown,

415 U.S. 724 (1974) ................................................ 1

Sugarman v. Dougall,

413 U.S. 634 (1973) .............................................. 12

vi

Taylor v. Beckham,

178 U.S. 548 (1900) .............................................. 12

Trump v. Anderson,

601 U.S. 100 (2024) .............................................. 12

U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779 (1995) .............................................. 19

United States v. Classic,

313 U.S. 299 (1941) .................................... 1, 17, 22

United States v. Gradwell,

243 U.S. 476 (1917) .............................................. 20

United States v. Wells,

519 U.S. 482 (1997) .............................................. 25

Va. Uranium, Inc. v. Warren,

587 U.S. 761 (2019) .............................................. 25

Wisc. Cent. Ltd. v. United States,

585 U.S. 274 (2018) .............................................. 16

Wyeth v. Levine,

555 U.S. 555 (2009) .............................................. 23

Ziglar v. Abbasi,

582 U.S. 120 (2017) ........................................ 23, 25

Constitutional Provisions

U.S. Const. amend. XVII ................................... 18, 22

U.S. Const. art. I, § 2, cl. 1 ....................................... 18

U.S. Const. art. II, § 1, cl. 4 ..................................... 20

vii

Statutes

10 Ill. Comp. Stat. 5/18A-15 ...................................... 7

10 Ill. Comp. Stat. 5/19-8 ........................................... 7

2 U.S.C. § 1 ..................................................... 2, 15, 16

2 U.S.C. § 7 ..................................................... 2, 15, 16

25 Pa. Cons. Stat. § 3511 ........................................... 7

3 U.S.C. § 11 ............................................................. 19

3 U.S.C. § 12 ............................................................. 19

3 U.S.C. § 21 ............................................................. 24

3 U.S.C. § 5 ................................................................. 2

3 U.S.C. § 7 ........................................................... 2, 19

52 U.S.C. § 20302 ..................................................... 14

52 U.S.C. § 20303 ............................................... 14, 24

52 U.S.C. § 20304 ............................................... 14, 24

Act of Jan. 23, 1845,

5 Stat. 721 ............................................................. 16

Ala. Code § 17-11-18 .................................................. 7

Alaska Stat. § 15.20.081 ............................................ 5

Ark. Code. Ann. § 7-5-411 .......................................... 7

Cal. Elec. Code § 3020 ................................................ 5

viii

Colo. Rev. Stat. § 1-8.3-102 ........................................ 7

Colo. Rev. Stat. § 1-8.3-111 ........................................ 7

Colo. Rev. Stat. § 1-8.3-113 ........................................ 7

Consolidated Appropriations Act of 2023,

Pub. L. 117-328, 136 Stat. 4459 (2022)................ 24

D.C. Code § 1-1001.05 ................................................ 5

Fla. Stat. § 101.6952 .................................................. 7

Ga. Code Ann. § 21-2-386 .......................................... 8

Ind. Code § 3-12-1-17 ................................................. 7

Iowa Code § 53.44 ...................................................... 8

Mass. Gen. Laws ch. 54, § 93 ..................................... 6

Mass. Gen. Laws ch. 54, § 99 ..................................... 7

Md. Code Ann., Elec. Law § 11-302 ........................... 6

Mich. Comp. Laws § 168.714 ................................... 12

Mich. Comp. Laws § 168.759a ................................... 8

Minn. Stat. Ann. § 204D.11 ..................................... 10

Mo. Rev. Stat. § 115.281 .......................................... 12

Mo. Rev. Stat. § 115.391 .......................................... 12

Mo. Rev. Stat. § 115.920 ............................................ 8

ix

N.C. Gen. Stat. § 163-182.5 ....................................... 8

N.C. Gen. Stat. § 163-258.10 ..................................... 8

N.C. Gen. Stat. § 163-258.12 ..................................... 8

N.D. Cent. Code § 16.1-07-24..................................... 9

N.D. Cent. Code § 16.1-07-26..................................... 9

N.D. Cent. Code § 16.1-15-17..................................... 9

N.J. Stat. Ann. § 19:63-22 .......................................... 5

N.Y. Elec. Law § 8-412 ............................................... 6

Nev. Rev. Stat. § 293.269921 ..................................... 6

Ohio Rev. Code Ann. § 3511.11 ................................. 8

Or. Rev. Stat. § 254.470 ............................................. 5

R.I. Gen. Laws § 17-20-16 .......................................... 7

R.I. Gen. Laws § 17-20-6.1 ......................................... 7

S.C. Code Ann. § 7-15-700 ......................................... 8

S.C. Code Ann. § 7-17-10 ........................................... 8

Tex. Elec. Code Ann. § 86.007 ................................... 6

Utah Code Ann. § 20A-16-404 ................................... 8

Utah Code Ann. § 20A-16-408 ................................... 8

Utah Code Ann. § 20A-4-301 ..................................... 8

x

Va. Code Ann. § 24.2-612 ......................................... 12

Va. Code Ann. § 24.2-702.1 ........................................ 6

Va. Code Ann. § 24.2-709 ........................................... 6

W. Va. Code § 3-3-5 .................................................... 6

W. Va. Code § 3-6-9 .................................................... 7

Wash. Rev. Code § 29A.60.190 .................................. 7

Executive and Legislative Materials

H.R. J., 29th Cong., 1st Sess. (Dec. 2, 1845) ........... 17

Overseas Absentee Voting: Hearing on The

Overseas Citizens Voting Rights Act of 1975,

The Federal Voting Assistance Act of 1955 & S.

703 Before the S. Comm. on Rules & Admin.,

95th Cong. (1977) ................................................. 24

S.B. 293, 136th Gen. Assemb., Reg. Sess. (Ohio

2025)........................................................................ 8

Other Authorities

9/25/2025 Order, Republican Nat’l Comm. v.

Burgess,

No. 24-5071 (9th Cir. Sept. 25, 2025) .................... 6

Charles Seymour,

How the World Votes: The Story of Democratic

Development in Elections (1918) .......................... 21

xi

Charles Stewart III,

The Cost of Conducting Elections,

MIT Election Data + Science Lab (2022) ............. 10

Donald S. Inbody,

Voting by Overseas and Military Personnel,

14 Election L. J. 54 (2015).................................... 15

Edward M. Hartwell, Edward W. McGlenen, &

Edward O. Skelton,

Boston and Its Story, 1630-1915 (1909) ............... 21

Election Certification Deadlines,

Nat’l Conf. of State Legislatures (Jan. 20,

2025)........................................................................ 2

Governor Mike DeWine - 12-19-2025 - Bill

Signing (The Ohio Channel, Dec. 19, 2025) ........ 12

Grace Panetta,

Surging Paper Costs and Supply Chain Issues

Could Lead to Ballot Shortages Ahead of the

2022 Midterms,

Business Insider, Mar. 18, 2022 .......................... 11

In Council, April 19, 1847,

Alexandria Gazette, Apr. 21, 1847 ...................... 17

John C. Fortier & Norman J. Ornstein,

The Absentee Ballot and the Secret Ballot:

Challenges for Election Reform,

36 U. Mich. J.L. Reform 483 (2003) ..................... 21

xii

Joseph Clark,

Researchers Set Out to Tackle Voting

Challenges of Military Members,

U.S. Dep’t of Def. News, Feb. 12, 2024 ................ 13

Josiah H. Benton,

Voting in the Field : A Forgotten Chapter of the

Civil War (1915) ............................................. 21, 22

Lisa Schur et al.,

Ensuring Voting Access Across the Electorate,

3 J. Election Admin. Rsch. & Prac. (Special

Issue) 3 (2025)....................................................... 13

Louis Melius,

The American Postal Service: History of the

Postal Service from the Earliest Times (1917) ..... 22

Noah Webster,

An American Dictionary of the English

Language (1841) ................................................... 16

Nolan McKendry,

La. Shift to Party-Primary Elections Will Cost

$47M,

The Daily Iberian, Dec. 7, 2025 ........................... 11

Rachel Orey,

Grace Gordon & Christopher Thomas,

Preparing for Ballot Paper Shortages in 2022

and 2024,

Bipartisan Pol’y Ctr. (June 6, 2022) .................... 11

xiii

Richard Franklin Bensel,

The American Ballot Box in the MidNineteenth Century (2004) ................................... 22

Samuel T. Worcester,

Hollis, New-Hampshire, In the War of the

Revolution,

in 30 New-Eng. Hist. & Genealogical Reg. 288

(1876) .................................................................... 21

Steven F. Huefner,

Lessons from Improvements in Military and

Overseas Voting,

47 U. Rich. L. Rev. 833 (2013).............................. 15

The Spring Election,

N.Y. Herald, Jan. 14, 1845 ................................... 17

Voting for Military & Overseas Voters,

Nat’l Conf. State Legislatures (Aug. 16, 2024).... 13

INTRODUCTION AND

INTEREST OF AMICI CURIAE

In devising our system of federalism, the Framers

intended that states generally “keep for themselves,

as provided in the Tenth Amendment, the power to

regulate elections.” Shelby County v. Holder, 570 U.S.

529, 543 (2013) (quoting Gregory v. Ashcroft, 501 U.S.

452, 461-62 (1991)). “Unless Congress acts,” Foster v.

Love, 522 U.S. 67, 69 (1997) (quoting Roundebush v.

Hartke, 405 U.S. 15, 24 (1972)), states remain

“primarily” responsible for regulating federal and

state elections, Shelby County, 570 U.S. at 543

(quoting Perry v. Perez, 565 U.S. 388, 392 (2012) (per

curiam)). Accordingly, states “are given, and in fact

exercise a wide discretion” in adopting policies to

ensure that elections are fair and efficient. United

States v. Classic, 313 U.S. 299, 311 (1941). Exercising

that authority, states have enacted “comprehensive,

and in many respects complex, election codes

regulating” the “time, place, and manner” of “both

federal and state elections.” Storer v. Brown, 415 U.S.

724, 730 (1974).

The issue in this case is whether states may count

absentee ballots postmarked on or before, but

received after, the federal election day. A majority of

jurisdictions count at least some timely cast mail-in

ballots that arrive after election day. In addition to

Mississippi, 13 states and the District of Columbia

count all absentee ballots mailed on or before election

day that arrive within a certain number of days of the

election. An additional 16 states count timely cast

absentee ballots that arrive after election day only if

cast by certain voters, most often military service

members and other overseas voters. The remaining

2

20 states count absentee ballots only if they arrive by

election day. In selecting a policy, states have made

their own judgments to balance the interest in

counting all timely, lawfully cast ballots against the

practical need to certify election results by certain

deadlines. See Election Certification Deadlines, Nat’l

Conf. of State Legislatures (Jan. 20, 2025),

tinyurl.com/mpzxc9s3 (surveying state deadlines); 3

U.S.C. §§ 5, 7 (setting federal deadlines). In this area,

then, different choices reflect different local

conditions, resources, and policy judgments.

As respondents would have it, however, Congress

forbade states from making the choice to count timely

cast ballots that arrive after election day nearly two

centuries ago when it enacted the federal election-day

statutes. See 2 U.S.C. §§ 1, 7; 3 U.S.C. § 1. But

reading those statutes to preempt states’ ballotreceipt deadlines would flout statutory meaning,

constitutional text and tradition, and states’ role in

our federal system. Accordingly, the District of

Columbia,

California,

Colorado,

Connecticut,

Delaware,

Hawaii,

Illinois,

Maryland,

Massachusetts, Michigan, Minnesota, Nevada,

New Jersey, New Mexico, New York, North Carolina,

Oregon, Rhode Island, Vermont, and Washington file

this brief as amici curiae in support of petitioner

Michael Watson, the Mississippi Secretary of State, to

explain why the Court should preserve states’

flexibility to enact ballot-receipt deadlines that meet

the needs of their citizens and election officials.

As our constitutional tradition and the text of the

election-day statutes make clear, states have the

authority to make the “policy choice” to “require only

3

that absentee ballots be mailed by election day,” not

that they also be received by that date. Democratic

Nat’l Comm. v. Wis. State Legislature, 141 S. Ct. 28,

34 (2020) (Kavanaugh, J., concurring in denial of

application to vacate stay).

By contrast, were

respondents’ startling view correct, states would be

left with intolerable burdens in administering

elections. It would, in practical terms, force states to

change the way they count ballots for their own offices

to conform to the federal rule, or else bifurcate ballots

and election rules for state and federal offices. The

former would harm states’ sovereignty; the latter

would risk debilitating election administration.

Worse, disqualifying all timely cast ballots that arrive

after election day would jeopardize states’ efforts to

count the lawful votes of military service members

and their families stationed abroad. The election-day

statutes do not require that result. The Court should

reverse the decision below and confirm that states

have the flexibility to count ballots mailed by, but

received after, election day.

SUMMARY OF ARGUMENT

1. Exercising their constitutional authority to

regulate federal elections, states have adopted a wide

range of policies regarding mail-in absentee ballots.

Those policies include setting the day by which an

absentee ballot must arrive to be counted and

deciding which voters—the general public or a subset

of military and overseas voters—may take advantage

of extended ballot-receipt deadlines. In total, 30

states and the District of Columbia accept and count

at least some absentee ballots that are postmarked on

or before election day but received thereafter. States’

4

decisions in this arena reflect their individualized

conditions and judgments on how best to administer

their elections. Adopting respondents’ position would

wipe away those choices and impose a one-size-fits-all

rule in their stead. Doing so would impinge on states’

traditional authority to regulate federal elections,

force them to conform state elections to the same rule

to avoid the confusion inherent in administering two

separate balloting systems, and jeopardize the

franchise for military overseas voters who benefit

from flexible ballot-receipt deadlines.

2.

The federal election-day statutes do not

preempt states’ ballot-receipt deadlines. Beginning

with the text, contemporary dictionaries and usages

demonstrate that “election” simply means “choice.”

And voters make their final choice when they mail

their absentee ballots on or before election day, even

if many states receive those ballots after election day.

That understanding accords with our constitutional

text and history, under which states have long

received and counted absentee ballots—including

those arriving after election day—to protect the

franchise of military service members and other

voters. Lastly, were there any doubt, Congress has

repeatedly legislated in the field of absentee voting

without ever imposing a uniform ballot-receipt

deadline, opting instead to incorporate existing state

practices. Congress’s consistent acquiescence in

states’ varied ballot-receipt practices confirms that

receipt deadlines after election day do not violate the

federal election-day statutes.

5

ARGUMENT

I. Respondents’ Rule Threatens Ballot-Receipt

Laws In A Majority Of States, Undermining

States’ Sovereignty And Efforts to Ensure

Military Service Members May Vote.

A. Most states and the District of Columbia

count at least some absentee ballots that

are mailed by—but arrive after—election

day.

In the decision below, the Fifth Circuit struck

down Mississippi’s law permitting election officials to

count absentee ballots “postmarked on or before the

date of the election and received by the registrar no

more than five (5) business days after the election.”

Miss. Code Ann. § 23-15-637(1)(a). If that view were

correct, it would invalidate the laws of an additional

29 states and the District of Columbia that allow

election administrators to count at least some timely

cast absentee ballots that arrive after election day.

States counting ballots that arrive after election

day for all voters. Including Mississippi, 14 states and

the District of Columbia count absentee ballots

mailed on or before election day but received after

that date, no matter who cast them. Alaska and the

District of Columbia count ballots received up to ten

days after election day. Alaska Stat. § 15.20.081(e);

D.C. Code § 1-1001.05(a)(10B)(A). In California and

Oregon, the deadline is seven days after election day.

Cal. Elec. Code § 3020(b); Or. Rev. Stat.

§ 254.470(6)(e)(B).

New Jersey requires receipt

“within 144 hours [six days] after the time of the

closing of the polls.” N.J. Stat. Ann. § 19:63-22(a).

New York counts ballots up to seven days after

6

election day if the ballot is postmarked by election

day, or one day after election day if there is no dated

postmark. N.Y. Elec. Law § 8-412(1). Similarly,

Nevada counts ballots up to four days after election

day if postmarked by election day, Nev. Rev. Stat.

§ 293.269921(1)(b), or three days thereafter if “the

date of the postmark cannot be determined,” id.

§ 293.269921(2). 1

Massachusetts and Virginia,

meanwhile, count ballots received three days after

election day. Mass. Gen. Laws ch. 54, § 93; Va. Code

Ann. §§ 24.2-702.1(B), -709(B). Maryland grants ten

days beyond election day for ballot receipt, so long as

the ballot was mailed on or before election day. Md.

Code. Ann., Elec. Law § 11-302.. And in Texas, ballots

may arrive “not later than 5 p.m. on the day after

election day,” though they must be “placed for

delivery by mail . . . before election day” and

postmarked “not later than 7 p.m.” on that day. Tex.

Elec. Code Ann. § 86.007(a)(2).

Some of these states peg their ballot-receipt

deadlines to other election-related dates.

For

instance, West Virginia counts ballots postmarked by

election day if received by the time “the board of

canvassers convenes to begin the canvass,” W. Va.

Code § 3-3-5(g)(2), which occurs five days after

In 2024, a group of political organizations and voters

challenged Nevada’s ballot-receipt law, but the district court

concluded that the plaintiffs lacked standing. Republican Nat’l

Comm. v. Burgess, No. 3:24-cv-198, 2024 WL 3445254 (D. Nev.

July 17, 2024). The case is now pending before the Ninth Circuit,

which has held it in abeyance pending this Court’s decision in

Bost v. Ill. State Bd. of Elections, 145 S. Ct. 2751 (2025) (mem.)

(granting certiorari). See 9/25/2025 Order, Republican Nat’l

Comm. v. Burgess, No. 24-5071 (9th Cir. Sept. 25, 2025).

1

7

election day, id. § 3-6-9(a)(1). Illinois counts ballots

postmarked by election day and received “before the

close of the period for counting provisional ballots,” 10

Ill. Comp. Stat. 5/19-8(c), meaning up to 14 days after

election day, id. 5/18A-15. 2 And Washington counts

ballots postmarked by election day if “receive[d] no

later than the day before certification,” Wash. Rev.

Code § 29A.60.190, which occurs up to 21 days after

the election, id. § 29A.60.190.

States counting ballots that arrive after election

day for certain voters only. Sixteen states count

ballots that arrive after election day for only some

voters, usually encompassing military service

members, their families, and sometimes other

overseas voters. 3 Of these states, Arkansas, Florida,

and Indiana have set their ballot-receipt deadlines

ten days after election day. Ark. Code. Ann. § 7-5411(a)(1)(A)(ii); Fla. Stat. § 101.6952(5); Ind. Code

§ 3-12-1-17(b). Colorado provides eight days, Colo.

Rev. Stat. §§ 1-8.3-102(2), -111, -113(2); Alabama,

Pennsylvania, and Rhode Island each provide seven

days, Ala. Code § 17-11-18(b); 25 Pa. Cons. Stat.

§ 3511(a); R.I. Gen. Laws §§ 17-20-6.1, -16; Michigan

In Bost, this Court granted certiorari to review a decision

of the Seventh Circuit holding that a political candidate lacked

standing to challenge Illinois’s ballot-receipt law. 145 S. Ct.

2751.

2

The states that count ballots that arrive after election day

for all voters sometimes also provide more specifically for

military or overseas voters. See, e.g., Mass. Gen. Laws ch. 54,

§§ 99, 95 (counting mail-in absentee ballots “received within ten

days following a state or city final election and mailed on or

before the day of election, from a location outside the United

States”).

3

8

provides six, Mich. Comp. Laws § 168.759a(18); and

Georgia and Missouri each provide three, Ga. Code

Ann. § 21-2-386(a)(1)(G); Mo. Rev. Stat. § 115.920(1).

Iowa and Ohio accept ballots postmarked by the day

before the election if received, respectively, “not later

than noon on the Monday following the election” in

Iowa, Iowa Code § 53.44(2), or “through the fourth day

after the election day” in Ohio, Ohio Rev. Code Ann.

§ 3511.11(B). 4

In North Carolina and South Carolina, the ballotreceipt deadline is the “end of business on the

business day before the [county] canvass”—which is

“on the tenth day after [the] election” in North

Carolina, N.C. Gen. Stat. §§ 163-258.10, -258.12, 182.5(b), and three days after the election in South

Carolina, S.C. Code Ann. §§ 7-15-700(A), 7-17-10. In

North Carolina, however, military-overseas absentee

ballots must be mailed “not later than 12:01

A.M. . . . on the date of the election.” N.C. Gen. Stat.

§ 163-258.10.

Likewise, Utah accepts “militaryoverseas ballot[s]” if “submitted for mailing . . . not

later than 12:01 a.m. . . . on the date of the election,”

Utah Code Ann. § 20A-16-404, and “delivered by the

end of business on the business day before the latest

deadline for completing the canvass,” id. § 20A-16408(1), which is 14 days after the election, id.

§ 20A-4-301(1)(b). Finally, North Dakota counts

military-overseas ballots cast by election day and

4 On December 19, 2025 the Governor of Ohio signed into law

a bill repealing the state’s general four-day period for receiving

absentee ballots after election day. See S.B. 293, § 1, 136th Gen.

Assemb., Reg. Sess. (Ohio 2025). However, the bill exempts “a

uniformed services or overseas absent voter’s ballot.” Id.; Ohio

Rev. Code Ann. § 3511.11(B).

9

“delivered before the canvassing board meets to

canvas the returns,” N.D. Cent. Code §§ 16.1-07-24, 26(1), which occurs 13 days after the election, id.

§ 16.1-15-17.

All told, 30 states and the District of Columbia

have extended the receipt deadline for some mail-in

absentee ballots past election day. To be sure, those

states have adopted a wide range of deadlines and

chosen to accommodate different groups of voters.

Other states have designated election day as their

ballot-receipt deadline. But until the Fifth Circuit’s

decision, each state has been free to make its own

judgment about counting valid ballots that are mailed

before, but arrive after, election day.

B. Reading the federal election-day statutes

to preempt state ballot-receipt deadlines

would subvert state sovereignty and

imperil the franchise of military service

members stationed abroad.

Respondents’ view of the federal election-day

statutes threatens states’ sovereign power to control

their own elections, as well as their interest in

counting the timely cast votes of military service

members and their families overseas.

1. To begin, although respondents’ theory would

technically preempt post-election-day ballot-receipt

deadlines only in federal elections, it would have

spillover effects for state and local elections.

Specifically, their theory would present states with a

Hobson’s choice: bifurcate the balloting process in

otherwise overlapping federal and state elections, or

amend the ballot-receipt deadline even for their own

elections. The former would lead to chaos. Currently,

10

states usually conduct elections for state and federal

officials “at the same time, on the same ballots, by the

same voters.” Arizona v. Inter Tribal Council of

Arizona, Inc., 570 U.S. 1, 21 (2013) (Kennedy, J.,

concurring in part and concurring in the judgment);

see, e.g., Minn. Stat. Ann. § 204D.11, subdiv. 1

(providing for “a single ballot” for federal and state

offices). Indeed, states and localities often have little

alternative, given the billions of dollars they must

spend to administer elections. See Charles Stewart

III, The Cost of Conducting Elections 3, MIT Election

Data + Science Lab (2022), perma.cc/Y3VE-32QS

(estimating that the 2020 election cost states $10

billion).

In respondents’ view, federal law forbids states

from counting timely cast ballots for federal offices

received after election day. But states would still be

required by their own laws to count such ballots for

state offices under the ballot-receipt deadlines

currently on the books. See Ariz. State Legislature v.

Ariz.

Indep.

Redistricting

Comm’n,

576 U.S. 787, 819 (2015) (explaining that the

Elections Clause does not affect states’ regulation of

state elections). To duly administer state and federal

elections with different ballot-receipt rules, states

could thus be forced to print, distribute, and count two

sets of ballots and overhaul their outreach to voters

and their training of election officials concerning

these two different rules.

The costs of a bifurcated election would be

profound.

Between printing and distributing

balloting materials, purchasing ballot scanners,

conducting voter outreach, and hiring and training

11

workers, states could incur further millions—if not

billions—of dollars in election administration costs.

See Stewart, supra, at 6. The expense of balloting

materials alone has become acute for states in recent

years due to the shift to paper ballots after 2016,

widespread paper mill closures during the pandemic,

supply-chain disruptions, inflation, and redistricting.

Grace Panetta, Surging Paper Costs and Supply

Chain Issues Could Lead to Ballot Shortages Ahead of

the 2022 Midterms, Business Insider, Mar. 18, 2022,

perma.cc/46ZA-9LFP; Rachel Orey, Grace Gordon &

Christopher Thomas, Preparing for Ballot Paper

Shortages in 2022 and 2024, Bipartisan Pol’y Ctr.

(June 6, 2022), perma.cc/8QM4-ARSR. In Louisiana,

for instance, the recent move to a party-primary

system with separate ballots for each party is

expected to cost as much as $20 million in 2026, with

“ballots, election supplies, and registrar staffing

driving much of the expense.” Nolan McKendry, La.

Shift to Party-Primary Elections Will Cost $47M, The

Daily Iberian, Dec. 7, 2025, perma.cc/5LAY-RLFU

(citation modified).

Moreover, even if states had the resources to

conduct two separate election processes in parallel

with distinct ballots and rules, doing so may well be

logistically impossible. “Ballots and elections do not

magically materialize.

They require planning,

preparation, and studious attention to detail if the

fairness and integrity of the electoral process is to be

observed.” Perry v. Judd, 471 F. App’x 219, 226 (4th

Cir. 2012) (opinion of Wilkinson, Agee, & Diaz, JJ.).

On that score, states’ own laws require them to

finalize sample ballots, applications for absentee

ballots, and ballots themselves far in advance of

12

election day. See, e.g., Mich. Comp. Laws § 168.714;

Mo. Rev. Stat. §§ 115.281, -.391; Va. Code Ann. § 24.2612. What is already a Herculean task in ordinary

election conditions would become nearly impossible

amid the confusion and delay of a bifurcated election.

Given these dramatic consequences, most states

would likely feel forced to repeal their ballot-receipt

deadlines for their own elections as well. 5 That,

however, would only exacerbate the harm

respondents’ rule would cause to states’ sovereignty.

The Court has long recognized states’ “sovereign

‘power to prescribe the qualifications of their own

officers’ and ‘the manner of their election . . . free

from external interference.’” Trump v. Anderson, 601

U.S. 100, 110-11 (2024) (quoting Taylor v. Beckham,

178 U.S. 548, 570-71 (1900)). “Such power inheres in

the State by virtue of its obligation . . . ‘to preserve

the basic conception of a political community.’”

Sugarman v. Dougall, 413 U.S. 634, 647 (1973)

(quoting Dunn v. Blumstein, 405 U.S. 330, 344

(1972)).

Yet respondents call for exactly that

“external interference” into states’ sovereignty. The

upshot would be to coerce states into abandoning

their duly enacted absentee ballot laws, swapping

Indeed, Ohio has already done so. Joined by the Ohio

House Speaker at a press conference, Governor DeWine

explained that he “reluctantly” signed into law a bill repealing

the state’s “reasonable” ballot-receipt deadline because, “if the

[Supreme] Court in late June upholds the Fifth Circuit case,”

having “[t]wo sets of rules or even two separate

ballots . . . certainly would confuse voters” and result in a

“chaotic” election. Governor Mike DeWine - 12-19-2025 - Bill

Signing, at 20:10 to 22:30 (The Ohio Channel, Dec. 19, 2025),

www.ohiochannel.org/video/governor-mike-dewine-12-19-2025bill-signing.

5

13

those locally tailored policies for a one-size-fits-all

approach even for state elections over which Congress

should have no control.

2. Worse, respondents’ rule would most heavily

burden military service members and their families

stationed abroad. While absentee ballots and flexible

ballot-receipt deadlines protect the franchise of many

voters, including those with disabilities or who live in

rural or remote communities, see generally Lisa Schur

et al., Ensuring Voting Access Across the Electorate, 3

J. Election Admin. Rsch. & Prac. (Special Issue) 3

(2025), they are especially important for the millionplus Americans serving in the military overseas. For

them and their families, in-person voting is usually

not an option. See Voting for Military & Overseas

Voters, Nat’l Conf. of State Legislatures (Aug. 16,

2024), tinyurl.com/usd38zpc.

To meet ballot-receipt deadlines, then, members of

the military often must request mail-in absentee

ballots well in advance of the election and “vote

earlier than their civilian counterparts due to long

[international] mailing timelines.” Joseph Clark,

Researchers Set Out to Tackle Voting Challenges of

Military Members, U.S. Dep’t of Def. News, Feb. 12,

2024, tinyurl.com/yck9dzv5. Unsurprisingly, those

logistical obstacles result in “lower turnout by

military members when compared with civilian

voters.” Id. (noting 27% lower turnout by military

voters than similarly situated civilians in 2020).

Thus, the choice of 30 states and the District of

Columbia to count timely mailed ballots received after

election day from these voters makes eminent sense:

it makes voting more accessible for service members,

14

facilitating their participation in our democracy.

Reading the election-day statutes to preempt state

ballot-receipt deadlines would make it all the more

difficult for service members to exercise the franchise.

Contrary to the Fifth Circuit’s suggestion, the

Uniformed and Overseas Citizens Absentee Voting

Act (“UOCAVA”) would not save states’ flexible ballotreceipt deadlines for military service members. See

Pet. App. 22a. Certainly, UOCAVA provides some

protection for the ability of military service members

abroad to vote. For example, UOCAVA mandates

that overseas military voters receive their ballots 45

days before election day in most circumstances. See

52 U.S.C. § 20302. But UOCAVA sets no uniform

ballot-receipt deadline for all eligible overseas voters.

Instead, it provides for military overseas ballots to be

“processed in the manner provided by law for

absentee ballots in the State involved,” incorporating

states’ wide-ranging ballot-receipt deadlines. Id.

§ 20303(b). Other language in UOCAVA is similarly

agnostic about the deadlines that states set for ballot

receipt.

See id. §§ 20302(a)(10), 20304(b)(1)

(requiring that states abide by federal regulations for

delivery, processing, and acceptance of absentee

ballots of overseas service members “not later than

the date by which an absentee ballot must be received

in order to be counted in the election”). In other

words, while UOCAVA eliminates some of the

obstacles military service members abroad face in

meeting state ballot-receipt deadlines, it takes those

deadlines as a given and says nothing about which

precise day they must be.

15

UOCAVA therefore does “not solve[] the most

critical problem facing overseas voters: the need for

more time to request, receive, vote, and return an

absentee ballot before the state deadlines.” Steven F.

Huefner, Lessons from Improvements in Military and

Overseas Voting, 47 U. Rich. L. Rev. 833, 843 (2013).

Indeed, “the principal reason” that ballots cast under

UOCAVA are rejected is “missing the state deadline.”

Donald S. Inbody, Voting by Overseas and Military

Personnel, 14 Election L. J. 54, 55-56 (2015). Because

UOCAVA does not prescribe any particular ballotreceipt deadline, it cannot save the state ballotreceipt deadlines for service members that

respondents’ theory would destroy.

II. The Federal Election-Day Statutes Do Not

Preempt State Ballot-Receipt Deadlines.

The federal election-day statutes do not preempt

Mississippi’s ballot-receipt deadline. Rather, like the

post-election-day deadlines in most other states,

Mississippi’s ballot-receipt law fits securely within

the flexibility afforded by federal election-law

statutes and our constitutional tradition.

A. Nothing in the text of the federal electionday statutes preempts state ballot-receipt

deadlines.

The election-day statutes set the Tuesday after the

first Monday in November in certain years as the

“election” day for federal offices. 2 U.S.C. §§ 1, 7; 3

U.S.C. § 1.

As the Court explained in Foster,

Congress enacted the original versions of these

statutes to address two concerns: “the results of an

early federal election in one State influenc[ing] later

voting in other States” and citizens having to vote “on

16

two different election days” for the presidency and

Congress. 522 U.S. at 73-74. Nothing in the text of

the statutes, however, suggests that Congress

additionally sought to forbid states from receiving

and counting ballots that are properly mailed by

election day.

Statutory interpretation begins with ascertaining

the words’ “ordinary meaning . . . at the time

Congress enacted the statute.” Wisc. Cent. Ltd. v.

United States, 585 U.S. 274, 277 (2018). Here, the key

word in the federal election-day statutes is “election.”

2 U.S.C. §§ 1, 7; 3 U.S.C. § 1; see Act of Jan. 23, 1845,

ch. 1, 5 Stat. 721 (enactment of the presidential

election-day statute).

As Mississippi explains,

contemporary dictionaries in 1845 defined “election”

as the act of choosing a public official. Pet’r’s Br. 24;

see, e.g., Noah Webster, An American Dictionary of the

English Language 288 (1841) (“The act of choosing a

person to fill an office or employment, by any

manifestation of preference, as by ballot, uplifted

hands, or viva voce.”); see also id. (similarly defining

“elect” as “[t]o pick out” or “[t]o choose”).

Contemporary usages of the word “election”

illustrate that meaning. In President Polk’s 1845

Annual Message to Congress (a forerunner to today’s

State of the Union Address), he used “elect” and

“election” interchangeably to refer to the act of

choosing. In one passage, he commented that his

predecessor President Tyler had “elected” to send a

proposal for annexation to the Republic of Texas, and

that he approved of President Tyler’s “election” to do

so. H.R. J., 29th Cong., 1st Sess., at 15 (Dec. 2, 1845)

(written communication of James K. Polk, U.S.

17

President). President Polk then described the

upcoming “election” in Texas, on which day public

officials would “be chosen by the people.”

Id.

Contemporary newspapers also used the words

“election” and “elect” to mean choosing, including

voters’ choice of officials. See, e.g., The Spring

Election, N.Y. Herald, Jan. 14, 1845, perma.cc/RW5P76KK (describing “the ensuing spring election, when

the people of this city elect their Mayor and Common

Council for the ensuing year”); In Council, April 19,

1847, Alexandria Gazette, Apr. 21, 1847,

https://perma.cc/SK5S-T32T (“Upon balloting for

officers, the following elections were duly made[.]”).

This Court’s precedents, too, have long deemed

“election” to mean the act of choosing a public official.

Over a century ago, the Court stated that “the word

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.” Newberry v.

United States, 256 U.S. 232, 250 (1921). Since then,

the Court has repeatedly reaffirmed that

understanding. See Classic, 313 U.S. at 318 (“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 Court applied that definition in Foster when

it interpreted the federal election-day statutes.

There, the Court began by explaining that the term

“election” in the election-day statutes “refer[s] to the

combined actions of voters and officials meant to

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

U.S. at 71 (emphasis added). The Court thus held

18

that a Louisiana law that allowed “a contested

selection of candidates for a congressional office” to

“conclude[] as a matter of law before the federal

election day, with no act in law or in fact to take place

on the date chosen by Congress, clearly violate[d] [2

U.S.C.] § 7.” Id. at 72. As the Court reasoned, the

election-day statutes require “only that if an election

does take place, it may not be consummated prior to

federal election day.” Id. at 71-72 & n.4.

Nothing in Foster’s holding requires that the

receipt of timely cast votes occur by election day.

Under Mississippi’s law, voters must still “make a

final selection of an officeholder” by election day, id.

at 71, even if election administrators receive and

tabulate those choices over the following days. See

Pet’r’s Br. 37.

The understanding that “election” means “the act

of choosing a public official” resolves the question

presented. In our system of government, of course, it

is the voters who choose leaders to represent them.

See, e.g., U.S. Const. art. I, § 2, cl. 1 (providing that

Representatives are “chosen . . . by the People”); id.

amend. XVII (providing that Senators are “elected by

the people”). No one would say that state election

administrators “elect” or “choose” our Senators and

Representatives.

And although Americans vote

indirectly for the President, the Electoral College

system only confirms this meaning of “election.” In

each state, electors “meet and give their votes on the

first Tuesday after the second Wednesday in

December,” then “immediately transmit” those votes

to the President of the Senate, with a receipt deadline

of “the fourth Wednesday in December.” 3 U.S.C.

19

§§ 7, 11-12. In this process, it is the electors who “do

indeed elect a President”—not the President of the

Senate who receives the electoral votes up to eight

days later. Chiafalo v. Washington, 591 U.S. 578, 592

(2020).

In short, receiving and counting timely cast ballots

after election day does not alter the day when voters

elect a public official to represent them. After all,

absentee voters cast their votes by mailing their

ballots no later than election day—at which point

they are stuck with their choice, just like someone

who drops their ballot in a box or pulls a lever in a

booth. Simply put, when an absentee voter mails his

ballot, his choice becomes final even if received after

election day. That is entirely consistent with the

election-day statutes.

B. Constitutional

text

and

tradition

empower states to set deadlines for

receipt of absentee ballots.

Interpreting the federal election-day statutes not

to preempt state absentee ballot-receipt deadlines

accords with constitutional text and tradition. “[T]he

Framers of the Constitution intended the States to

keep for themselves, as provided in the Tenth

Amendment, the power to regulate elections.” Shelby

County, 570 U.S. at 543 (quoting Gregory, 501 U.S. at

461-62). That is because “the Framers recognized

that state power and identity were essential parts of

the federal balance.” U.S. Term Limits, Inc. v.

Thornton, 514 U.S. 779, 841 (1995) (Kennedy, J.,

concurring). As such, states retain “broad power” to

regulate the “Times, Places and Manner” of

congressional elections unless Congress has

20

countermanded that authority by statute. Cook v.

Gralike, 531 U.S. 510, 523 (2001) (internal quotation

marks omitted); U.S. Const. art. I, § 4, cl. 1.

States also establish the “Manner” of choosing

presidential electors, U.S. Const. art. II, § 1, cl. 2,

while Congress “determine[s] the Time of chusing the

Electors, and the Day on which they shall give their

Votes,” id. art. II, § 1, cl. 4. Among the “Manner[s]”

left for the states to decide is how to conduct the

“counting of votes.” Cook, 531 U.S. at 524 (quoting

Smiley v. Holm, 285 U.S. 355, 366 (1932)). Indeed,

“from the foundation of the government to” the early

twentieth century, Congress left the regulation of

congressional elections “almost entirely to the states.”

United States v. Gradwell, 243 U.S. 476, 482-84

(1917).

Respondents characterize state absentee voting

laws as “deviations” from our history and tradition.

RNC BIO 22-26; see Br. for Ctr. for Election

Confidence, Inc., et al. as Amici Curiae in Supp. of

Granting Cert. 6-13. But history tells us just the

opposite: absentee voting laws—including extended

ballot-receipt deadlines—carry forward our nation’s

long tradition of providing flexibility to ensure that

military service members and other Americans can

vote despite being far from polling places.

Proxy voting was “a common practice in the

founding era.” Chiafalo, 591 U.S. at 591. As early as

1636, the Massachusetts Bay Colony established a

“proxy-voting” system for frontier towns, permitting

them to seal and send votes to Boston to be counted.

Edward M. Hartwell, Edward W. McGlenen, &

Edward O. Skelton, Boston and Its Story, 1630-1915,

21

at 87 (1909). Every New England colony soon did the

same. Charles Seymour, How the World Votes: The

Story of Democratic Development in Elections 220-21

(1918). Some communities, meanwhile, permitted

absentee voting only for service members. See, e.g.,

Samuel T. Worcester, Hollis, New-Hampshire, In the

War of the Revolution, in 30 New-Eng. Hist. &

Genealogical Reg. 288, 293 (1876), perma.cc/G2BCXB6J (discussing 1775 absentee ballot policy of the

Town of Hollis, New Hampshire).

Later,

during

the

Civil

War,

states

overwhelmingly adopted voting by mail or proxy.

John C. Fortier & Norman J. Ornstein, The Absentee

Ballot and the Secret Ballot: Challenges for Election

Reform, 36 U. Mich. J.L. Reform 483, 498-500 (2003).

With over one million eligible voters serving in the

Union army, in some states, over seven percent of

votes cast in the 1864 presidential election were

absentee ballots. Josiah H. Benton, Voting in the

Field : A Forgotten Chapter of the Civil War 311-14

(1915). To implement absentee voting despite poor

infrastructure for ballot delivery, states like

Alabama, Florida, Georgia, North Carolina, South

Carolina, Tennessee, and Virginia set their ballotreceipt deadlines up to 20 days after the election. Id.

at 317-18. In the North, too, every state except

Maryland allowed for “a sufficient period [to] 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” days later, “to enable the votes

to reach them.” Id. at 318.

To be sure, mail-in voting and extended ballotreceipt deadlines did not proliferate until after the

22

election-day statutes passed. But in the context of our

nation’s history, that fact should come as little

surprise.

Through the mid-nineteenth century,

widespread illiteracy and inadequate infrastructure

made mail-in ballots unappealing. Richard Franklin

Bensel, The American Ballot Box in the MidNineteenth Century 40-41 (2004); Benton, supra, at

316-18; Louis Melius, The American Postal Service:

History of the Postal Service from the Earliest Times

48-49 (1917). Mail-in ballots were also less necessary

at the time, given limited popular participation in

federal elections. In many states, the legislature

directly selected Senators and presidential electors.

See Benton, supra, at 9-11; U.S. Const. amend. XVII

(providing for popular election of Senators from 1913

onward). As for House elections, many states adhered

to viva voce (i.e., voice voting) due to small

populations, poll taxes, and property qualifications

keeping the number of votes manageable. Bensel,

supra, at 42-43, 54-56.

That there may have been less logistical need for

mail-in absentee voting when the election-day

statutes were adopted, however, is of no legal

moment. The legitimacy of absentee voting laws like

Mississippi’s does not somehow depend on finding a

historical match for them, especially in an era when

they would have the least reason to exist. See Classic,

313 U.S. at 324 (holding that 18 U.S.C. § 241 applies

to tampering with primary elections, finding it “not

significant that the primary, like the voting machine,

was unknown when [the statute] was adopted”).

23

C. Congress repeatedly acquiescing in state

ballot-receipt

deadlines

further

reinforces their validity.

Finally, even if the text of the federal election-day

statutes were ambiguous, Congress’s longstanding

acquiescence in states’ absentee ballot laws and

ballot-receipt deadlines reinforces that Congress did

not intend to preempt them.

The Court has often considered longstanding

Congressional “silence on [an] issue, coupled with its

certain awareness of” the consequence of that silence,

persuasive evidence of statutory meaning. Wyeth v.

Levine, 555 U.S. 555, 575 (2009); see, e.g., Barclays

Bank PLC v. Franchise Tax Bd. of Cal., 512 U.S. 298,

326 (1994); Ziglar v. Abbasi, 582 U.S. 120, 143 (2017).

Here, it is significant that Congress has taken no

action on ballot-receipt deadlines for decades, despite

being aware of state laws and contemplating federal

legislation on the matter.

In 1977, Congress considered amendments to

various aspects of federal election law, with several

witnesses proposing that ballot-receipt deadlines be

uniformly extended for overseas voters to a date after

election day. See, e.g., Overseas Absentee Voting:

Hearing on The Overseas Citizens Voting Rights Act

of 1975, The Federal Voting Assistance Act of 1955 &

S. 703 Before the S. Comm. on Rules & Admin., 95th

Cong. 17, 67, 74 (1977). As Congress was no doubt

aware from the record before it, two states at the time

had laws providing for the counting of overseas

ballots that arrived after election day. Id. at 33-34

(Nebraska and Washington). Yet Congress did not

enact a federal ballot-receipt deadline, leaving intact

24

states’ flexibility to enact such provisions to

accommodate local conditions and the needs of their

voters. See Kimbrough v. United States, 552 U.S. 85,

106 (2007) (noting Congress’s “tacit acceptance” when

it “failed to act on a proposed amendment”).

Then in 1986, Congress passed UOCAVA, again

leaving state ballot-receipt deadlines untouched. As

explained above, though UOCAVA requires states to

provide certain overseas voters with absentee ballots,

it does not set a uniform deadline for receiving those

ballots. If anything, its text expressly contemplates a

range of state ballot-receipt deadlines, instructing the

appropriate agency only to “implement procedures

that facilitate the delivery of marked absentee

ballots . . . 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(b)(1).

Elsewhere, UOCAVA provides that “a Federal writein absentee ballot shall be submitted and processed in

the manner provided by law for absentee ballots in the

State involved.” Id. § 20303(b) (emphasis added).

Thus, while Congress implicitly acknowledged states’

differing ballot-receipt deadlines when it enacted

UOCAVA, it did not set a nationwide deadline, let

alone establish that deadline as election day.

Most recently, Congress enacted the Electoral

Count Reform Act of 2022, amending 3 U.S.C. § 1 to

use the words “election day,” defined as the Tuesday

after the first Monday in November. Consolidated

Appropriations Act of 2023, Pub. L. 117-328, div. P,

§ 102, 136 Stat. 4459, 5233-34 (2022) (codified as

amended at 3 U.S.C. §§ 1, 21(1)). By this point,

Congress was surely aware that the majority of states

25

counted some timely cast mail-in ballots received

after election day. Yet, once again, it saw no reason

to interfere with state ballot-receipt deadlines.

To be sure, “the significance of subsequent

congressional action or inaction necessarily varies

with the circumstances.” United States v. Wells, 519

U.S. 482, 495 (1997). But there is hardly any subject

of which members of Congress would be more aware

than the state regulations governing their own

elections. If those ballot-receipt deadlines indeed

flout federal law, as respondents insist, it would be

surprising that Congress has done nothing to redress

that problem. See Johnson v. Transp. Agency, 480

U.S. 616, 629 n.7 (1987) (deeming “congressional

inaction”

significant

where

“legislative

inattention . . . is not a plausible explanation”);

Abbasi, 582 U.S. at 144 (similar).

***

Preemption “represents ‘a serious intrusion into

state sovereignty.’” Va. Uranium, Inc. v. Warren, 587

U.S. 761, 773 (2019) (plurality opinion) (quoting

Medtronic, Inc. v. Lohr, 518 U.S. 470, 488 (1996)

(plurality opinion)). “And to order preemption based

not on the strength of a clear congressional command”

but based on—at best—equivocal statutory language

also “represent[s] a significant judicial intrusion into

Congress’s authority to delimit the preemptive effect

of its laws.” Id. Caution is doubly warranted here,

given that respondents’ rule jeopardizes states’

control over their own elections as well. Faced with

this, the single word “election” in the federal electionday statutes is much too thin a reed to support

respondents’ position and the “deeply serious

26

consequences” it entails. Bond v. United States, 572

U.S. 844, 860 (2014).

27

CONCLUSION

The Court should reverse the judgment of the

Fifth Circuit.

Respectfully submitted,

BRIAN L. SCHWALB

Attorney General for the

District of Columbia

CAROLINE S. VAN ZILE*

Solicitor General

ASHWIN P. PHATAK

Principal Deputy

Solicitor General

LEO W. RASSIEUR

Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL

400 6th Street, NW, Suite 8100

Washington, D.C. 20001

(202) 724-6609

caroline.vanzile@dc.gov

January 2026

* Counsel of Record

28

On behalf of:

ROB BONTA

Attorney General

State of California

PHILIP J. WEISER

Attorney General

State of Colorado

WILLIAM TONG

Attorney General

State of Connecticut

KATHLEEN JENNINGS

Attorney General

State of Delaware

ANNE E. LOPEZ

Attorney General

State of Hawaii

KWAME RAOUL

Attorney General

State of Illinois

ANTHONY G. BROWN

Attorney General

State of Maryland

ANDREA JOY CAMPBELL

Attorney General

Commonwealth of

Massachusetts

DANA NESSEL

Attorney General

State of Michigan

KEITH ELLISON

Attorney General

State of Minnesota

AARON D. FORD

Attorney General

State of Nevada

MATTHEW J. PLATKIN

Attorney General

State of New Jersey

RAÚL TORREZ

Attorney General

State of New Mexico

LETITIA JAMES

Attorney General

State of New York

JEFF JACKSON

Attorney General

State of North Carolina

DAN RAYFIELD

Attorney General

State of Oregon

PETER F. NERONHA

Attorney General

State of Rhode Island

CHARITY R. CLARK

Attorney General

State of Vermont

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NICHOLAS W. BROWN

Attorney General

State of Washington