Amicus Curiae Brief — Michael Watson, Mississippi Secretary of State, Petitioner v. Republican National Committee, et al.
Supreme Court briefFeb 17, 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.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENTS
D. JOHN SAUER
Solicitor General
Counsel of Record
HARMEET K. DHILLON
Assistant Attorney General
HASHIM M. MOOPPAN
Deputy Solicitor General
JESUS A. OSETE
Principal Deputy Assistant
Attorney General
HARRY S. GRAVER
Assistant to the
Solicitor General
ANDREW G. BRANIFF
DAVID N. GOLDMAN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether the federal statutes that designate a single
“election day” for federal elections prohibit States from
counting voters’ ballots that are received after that day.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Introduction................................................................................... 2
Statement ...................................................................................... 4
Summary of Argument ................................................................ 6
Argument:
States Generally Must Be in Receipt of All Votes in
Federal Elections on “Election Day”:
A. Text ............................................................................. 8
B. Precedent ................................................................. 15
C. History ..................................................................... 18
D. Context ..................................................................... 27
Conclusion ................................................................................... 32
TABLE OF AUTHORITIES
Cases:
A.T. & Sante Fe R.R. v. Commissioner of Jefferson
County, 17 Kan. 29 (1876) .................................................. 16
Arizona v. Tribal Council of Arizona, Inc.,
570 U.S. 1 (2013) ................................................................... 8
Blackwell v. Thompson, 2 Stew. & P. 348 (Ala. 1832) ....... 10
Bostock v. Clayton County, 590 U.S. 644 (2020) ............ 25
Brnovich v. Democratic National Committee,
594 U.S. 647 (2021) ....................................................... 29
Burke v. State Board of Canvassers,
107 P.2d 773 (Kan. 1940) .................................................... 18
Burroughs v. Lyles, 181 S.W.2d 570 (Tex. 1944) ................ 14
Burson v. Freeman, 504 U.S. 191 (1992) ...................... 16, 27
City of Inglewood v. Kew,
132 P. 780 (Cal. Ct. App. 1913) .......................................... 10
(III)
IV
Cases—Continued:
Page
Coney Island Auto Parts Unlimited, Inc. v. Burton,
No. 24-808 (Jan. 20, 2026) .................................................. 23
Crawford v. Marion County Election Board,
553 U.S. 181 (2008).............................................................. 29
Democratic National Committee v. Wisconsin State
Legislature, 141 S. Ct. 28 (2020) .............................. 4, 29-31
Epic Systems Corp. v. Lewis, 584 U.S. 497 (2018) ............. 25
Foster v. Love, 522 U.S. 67 (1997) ....................... 2, 4, 7, 15-17
Goodell v. Judith Basin County,
224 P. 1110 (Mont. 1924) .................................................... 10
Hamdan v. Rumsfeld, 548 U.S. 557 (2006) ......................... 27
Harris v. Florida Elections Canvassing
Commission, 122 F. Supp. 2d 1317
(N.D. Fla. 2000) ............................................................. 24, 25
Maddox v. Board of Canvassers,
149 P.2d 112 (Mont. 1944) ............................................ 11, 15
New York State Rifle & Pistol Ass’n v. Bruen,
597 U.S. 1 (2022) ................................................................. 21
Newberry v. United States, 256 U.S. 232 (1921) ................ 16
Norman v. Thompson, 72 S.W. 62 (Tex. 1903) ................... 15
Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75 (1998) ............................................................... 30
Opinion of the Justices, In re, 113 A. 293 (N.H. 1921) ...... 18
People ex. rel. Twitchell v. Blodgett,
13 Mich. 127 (1865) ............................................................. 10
People ex. rel. Le Roy v. Foley,
43 N.E. 171 (N.Y. 1896) ...................................................... 11
RadLAX Gateway Hotel, LLC v. Amalgamated
Bank, 566 U.S. 639 (2012) ............................................ 25
Rapanos v. United States, 547 U.S. 715 (2006) .................. 27
Republican National Committee v. Democratic
National Committee, 589 U.S. 423 (2020) .................... 7, 17
V
Cases—Continued:
Page
Republican Party of Pennsylvania v. Degraffenreid,
141 S. Ct. 732 (2021) ........................................................... 29
State v. Tucker, 54 Ala. 205 (1875) ....................................... 10
State ex rel. Runge v. Anderson,
76 N.W. 482 (Wis. 1898) ..................................................... 10
Steinwehr v. State, 37 Tenn. (5 Sneed) 586
(Tenn. 1858) ......................................................................... 10
United States v. Rahimi, 602 U.S. 680 (2024) ............... 23
Voting Integrity Project, Inc. v. Keisling,
259 F.3d 1169 (9th Cir. 2001), cert. denied,
122 S. Ct. 1536 (2002) ..................................................... 5, 28
Constitution, statutes, and regulation:
U.S. Const.:
Art. I, § 4, Cl. 1 ............................................................ 4, 11
Art. II, § 1, Cl. 4................................................................. 4
Amend. XVII ..................................................................... 5
Act of Mar. 1, 1792, ch. 8, § 1, 1 Stat. 239 .............................. 4
Act of Jan. 23, 1845, ch. 1, 5 Stat. 721 .................................... 4
Act of Feb. 2, 1872, ch.11, § 3, 17 Stat. 28 ............................. 5
Act of June 4, 1914, ch. 103, 38 Stat. 384 ............................... 5
Act of Apr. 1, 1944, ch. 150, § 311(b)(3), 58 Stat. 146 ......... 24
Electoral Count Reform and Presidential Transition
Act of 2022, Pub. L. No. 117-328,
Div. P, Tit. I, 136 Stat 4459 ................................................ 27
§ 1, 136 Stat. 5233-5234 ................................................... 27
Help America Vote Act of 2002, Pub. L. No. 107-252,
116 Stat. 1666 (52 U.S.C. 20901 et seq.) ............................ 26
52 U.S.C. 21082(a) ........................................................... 27
Soldier’s Vote Act, ch. 561, 56 Stat. 753
(50 U.S.C. 301 et seq.) ......................................................... 23
§ 9, 56 Stat. 756 ................................................................ 24
VI
Statutes and regulation—Continued:
Page
Uniformed and Overseas Citizens Absentee Voting
Act, Pub. L. No. 99-410, 100 Stat. 924 (52 U.S.C.
20301 et seq.) ........................................................................ 23
52 U.S.C. 20303(b) ........................................................... 24
52 U.S.C. 20303(d) ........................................................... 24
52 U.S.C. 20304(b)(1) ...................................................... 24
Voting Rights Act, Pub. L. No. 89-110,
79 Stat. 437 (52 U.S.C. 10301 et seq.):
52 U.S.C. 10502 ................................................................ 26
52 U.S.C. 10502(d) ........................................................... 26
52 U.S.C. 10502(g) ........................................................... 26
2 U.S.C. 1 ................................................................ 1, 2, 5, 8, 14
2 U.S.C. 7 ................................................................ 1, 2, 5, 8, 14
3 U.S.C. 1 .................................................................... 1, 2, 5, 15
3 U.S.C. 21(1) ............................................................. 1, 5, 8, 15
26 U.S.C. 7502(a) ................................................................... 14
Alaska Stat. Ann. § 15.20.081(e) (West 2021) ..................... 12
Cal. Elec. Code § 3020(b)(2) (West 2022) ............................ 12
D.C. Code § 1-1001.05(a)(10B)(A) (2025) ............................ 12
10 Ill. Comp. Stat. (2023):
§ 5/18A-15(a) .................................................................... 12
§ 5/19-8(c) ......................................................................... 12
Md. Code Regs. (2024):
§ 33.11.03.08(B)(4)(a) ....................................................... 12
§ 33.11.03.08(B)(4)(b)(ii) .................................................. 12
Miss. Code Ann.:
§ 23-15-637(1) (West Supp. 2020) ..................................... 5
§ 23-15-637(1)(a) (West Supp. 2020) ................................ 5
§ 23-15-637(1)(a) (West Supp. 2024) .............................. 13
§ 23-15-637(2) (West Supp. 2020) ..................................... 5
§ 23-15-637(3) (West Supp. 2020) ..................................... 5
VII
Statutes and regulation—Continued:
Page
§ 23-15-673 (2018) .............................................................. 5
§ 23-15-713 (West Supp. 2020) ......................................... 5
2020 Miss. Laws 1411 .............................................................. 5
1866 Nev. Stat. 215 ................................................................ 22
Nev. Rev. Stat. Ann. § 293.269921.2 (West 2022) ............... 12
N.J. Stat. Ann. § 19:63-22(a) (West 2022) ........................... 12
N.Y. Elec. Law § 8-412(1) (McKinney 2024) ....................... 12
Or. Rev. Stat. Ann. § 253.070(4) (West 2022) ...................... 12
1864 Pa. Laws 1848................................................................ 21
1864 R.I. Acts & Resolves 4.................................................. 22
Wash. Rev. Code Ann. § 29A.60.190 (West 2019) ............... 12
Exec. Order No. 14,248, 90 Fed. Reg. 14,005
(Mar. 25, 2025)....................................................................... 1
Miscellaneous:
1 Anderson’s Law Dictionary (1st ed. 1889) ........................ 9
Josiah Henry Benton, Voting in the Field:
A Forgotten Chapter of the Civil War (1915) ....... 19-22, 28
1 John Bouvier, Bouvier’s Law Dictionary and
Concise Encyclopedia (8th ed. 1914) .................................. 9
29 C.J.S. Elections (1941) ....................................................... 9
Tracy Campbell, Deliver the Vote: A History of Election Fraud, An American Political Tradition (2005) ..... 28
Cong. Globe, 28th Cong., 1st Sess. 679 (1844) .............. 27, 30
Cong. Globe, 28th Cong., 2d Sess. 14 (1844) ..... 10, 11, 28, 30
Cong. Globe, 42d Cong., 2d Sess. 618 (1872)....................... 30
116 Cong. Rec. 28,876 (1970) ................................................ 26
15 Cyclopedia of Law and Procedure (1905) ........................ 9
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) . 22, 23
VIII
Miscellaneous—Continued:
Page
Frauds on Soldier Votes, Rochester Daily Union &
Advertiser, Nov. 1, 1864 ..................................................... 28
H.R. Rep. No. 31, 40th Cong., 3d Sess. 49 (1869) ............... 28
Joseph P. Harris, Election Administration in the
United States (1934) ........................................................... 31
William P. Hopkins, The Seventh Regiment Rhode
Island Volunteers (1903).................................................... 22
8 Judicial and Statutory Definitions of Words and
Phrases (1904) ....................................................................... 9
George W. McCrary, A Treatise on the American
Law of Elections (1875) .................................................. 9, 28
Floyd R. Mechem, A Treatise on the Law of Public
Offices and Officers (1890) ................................................. 18
James W. Milgram, Federal Civil War Postal
History (2007) ..................................................................... 21
Halbert E. Paine, A Treatise of the Law of Elections
to Public Offices (1888) ........................................................ 9
Richard H. Pildes, How to Accommodate a Massive
Surge in Absentee Voting, U. Chi. L. Rev. Online
45 (2020) ............................................................................... 29
P. O. Ray, Absent-Voting Laws, 18 Am. Pol. Sci. Rev.
296 (1924) ............................................................................. 23
Paul G. Steinbicker, Absentee Voting in the United
States, 32 Am. Pol. Sci. Rev. 898 (1938) ............................ 23
10 The American and English Encyclopedia of Law
and Practice (2d ed. 1899) ................................................... 9
Oscar Osburn Winther, The Soldier Vote in the
Election of 1864, 25 N.Y. Hist. 440 (1944) ........................ 28
In the Supreme Court of the United States
No. 24-1260
MICHAEL WATSON, MISSISSIPPI SECRETARY OF STATE,
PETITIONER
v.
REPUBLICAN NATIONAL COMMITTEE, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENTS
INTEREST OF THE UNITED STATES
Federal law designates a single day for federal elections. 2 U.S.C. 1, 7; 3 U.S.C. 1, 21(1). The United States
has a substantial interest in ensuring that this deadline
is followed in contests for federal office, and that States
thus do not count ballots received after that day in those
races. The United States also has a broader interest in
safeguarding the integrity of federal elections, which is
undermined by state laws that continue to count mail-in
ballots received days or weeks after election day. Exec.
Order No. 14,248, 90 Fed. Reg. 14,005 (Mar. 8, 2025).
(1)
2
INTRODUCTION
Elections have consequences. They also have a definition. And from the dawn of America, election day has
meant the day the ballot box closes—and when election
officials must be in receipt of all ballots. Mississippi’s
law is thus preempted: Under the election-day statutes,
a State cannot count ballots in federal elections that it
receives days or weeks after the federal election day.
The statutory text reflects common sense. Federal
law sets “the day for the election.” 2 U.S.C. 7; see 2
U.S.C. 1; 3 U.S.C. 1. When enacted, the plain meaning
of those words imposed a ballot-receipt deadline. “Election day” was the day all voting needed to be completed;
and the act of voting was not complete until a ballot had
been officially received. Voting, in this Court’s words,
is a “combined action[]” that requires not only a private
choice, but also receipt by a public officer. Foster v.
Love, 522 U.S. 67, 71 (1997). That combined action has
to be “done on federal election day,” not after. Id. at 72.
History offers powerful confirmation. During the
Civil War—America’s first foray into absentee voting—
every State provided that soldier-ballots must have
been received by officials on election day. Even as rebellion raged, States made herculean efforts that accounted for this requirement, from erecting election
districts in the field, to furloughing active-duty soldiers
so they could vote at home. That is not a Nation that
saw “election day” as indifferent to the timing of ballotreceipt. And as petitioner admits, that policy held constant through the last election-day statute’s passage.
Petitioner defends Mississippi’s law only by whittling almost all content from the election-day statutes.
In his view, “election day” is just the deadline for voters
to make a “final choice,” however defined under state
3
law. But petitioner does not offer a single contemporary source indicating a “vote” could become “final”
through anything less than official receipt. And if “election day” does not require day-of receipt, it is hard to
see why States placed that heavy practical burden on
soldiers during the Civil War. To boot, petitioner’s
choice-alone theory is irreconcilable with modern earlyvoting laws. Whatever “election” means, federal law is
express it must occur “on” a single day: If “the election”
occurs whenever voters make their final choice, early
voting would stretch the contest beyond “the day” set
by law; but early voting does not present that problem
if “the election” is the day when the ballot box closes
and officials must be in receipt of all timely votes.
The leading argument in defense of petitioner’s position has little to do with the text of the election-day
statutes, their history, or this Court’s precedent. Rather, petitioner’s defenders contend that, decades after
the last election-day law was passed, Congress enacted
two statutes aimed toward extending the voting period
for overseas servicemembers—and in so doing, provided that their ballots should be counted so long as
they were timely under state law, even if that deadline
was after the federal election day. But those narrow
exceptions do not redefine the general rule. Those statutes relaxed the federal deadline for a cabined class of
voters; they did not silently scrap the election-day laws’
baseline, the content of which was fixed decades earlier.
Finally, petitioner’s reading ignores the statutes’ animating context, and subverts their objectives of preventing fraud and promoting confidence in elections. If
a State has total discretion to decide what it means to
“cast” a ballot (Pet. Br. 25), then nothing stops a State
from letting voters hand in their ballots days or weeks
4
after election day (so long as they attest to having filled
them out before), or hand off their ballots to any private
party (so long as they are en route to officials). But the
principal purpose of these laws was to combat fraud, at
a time when absentee ballots were seen with suspicion
and ballot-box-stuffing was rampant. It would have
been unthinkable to Congress that “thousands of absentee ballots [could] flow in after election day” and “flip
the results of an election.” Democratic National Committee v. Wisconsin State Legislature, 141 S. Ct. 28, 33
(2020) (Kavanaugh, J., concurring in denial of application to vacate stay). Then as now, ensuring all ballot
boxes close on the same day eliminates incentives and
opportunities for fraudulent abuse; leaving them open
conflicts not only with the ordinary meaning of “election
day,” but also with the very integrity of the election.
STATEMENT
1. The Constitution allows States to set the time,
place, and manner of elections, but gives Congress the
power to “pre-empt state legislative choices” in favor of
uniform federal rules. Foster v. Love, 522 U.S. 67, 69
(1997); see U.S. Const. Art. I, § 4, Cl. 1; Art. II, § 1, Cl. 4.
Congress has exercised that authority to designate a
single “federal election day.” Foster, 552 U.S. at 69-70.
The first of these laws concerned presidential electors. Originally, Congress required that electors “for
the election of a President and Vice President” “be appointed in each state” within a “thirty-four” day period.
Act of Mar. 1, 1792, ch. 8, § 1, 1 Stat. 239. But in 1845,
Congress set a “uniform time for holding elections for
electors of President and Vice President.” Act of Jan.
23, 1845, ch. 1, 5 Stat. 721 (emphasis omitted). That
“election day” “on” which the electors “shall be appointed”
5
is the “Tuesday next after the first Monday in November, in every fourth year.” 3 U.S.C. 1, 21(1).
After the Civil War, Congress decided that elections
for the House—which then took place on different dates
and often over multiple days—should follow suit. Voting Integrity Project, Inc. v. Keisling, 259 F.3d 1169,
1171, 1173-1174 (9th Cir. 2001), cert. denied 122 S. Ct.
1536 (2002). Congress provided that “the day for the
election” of congressmen would be the same day as
presidential electors (but at two-year intervals). Act of
Feb. 2, 1872, ch. 11, § 3, 17 Stat. 28; accord 2 U.S.C. 7.
And after the Seventeenth Amendment’s adoption,
Congress assigned Senate elections to the same day as
the others. Act of June 4, 1914, ch. 103, 38 Stat. 384; see
2 U.S.C. 1 (aligning with the “regular election”).
2. In 2020, Mississippi changed its election laws so
that select ballots received after election day would still
be counted in federal elections. 2020 Miss. Laws 1411.
The State allowed certain voters to vote absentee, including by mail. Miss. Code Ann. §§ 23-15-713 (West
Supp. 2020), 23-15-673 (2018), 23-15-637(3) (West Supp.
2020). Such mail-in ballots “must be postmarked on or
before the date of the election.” Id. § 23-15-637(1)(a)
(West Supp. 2020). Mississippi considers such ballots
“timely cast” so long as they are “received by the registrar no more than five business days after the election.”
Id. § 23-15-637(1) and (2) (West Supp. 2020).
3. In 2024, the Republican National Committee led
a lawsuit challenging Mississippi’s absentee-ballot law
as preempted by the federal election-day statutes.
a. The district court awarded summary judgment to
defendants. Pet. App. 59a-85a. The court reasoned the
election-day laws require only that voters’ “final selection” be made by that day. Id. at 78a. Mississippi could
6
thus receive ballots after election day, so long as those
ballots were submitted by election day, as defined under
the State’s law. Id. at 78a-79a; see id. at 82a.
b. The court of appeals unanimously reversed. Pet.
App. 1a-26a. The court held that text and history dictate that a ballot is only “cast” when it has been “received” by election officials. Id. at 10a; see id. at 8a-18a.
In other words, “Election Day” is the day when “the
proverbial ballot box is closed,” and thus when officials
must be in “custody” of every ballot. Id. at 10a. Because Mississippi’s law kept the ballot box open for five
extra days, it was “preempted.” Id. at 26a.
c. The court of appeals denied rehearing en banc by
a 10-5 vote. Pet. App. 33a-58a. Judge Oldham, the author of the panel opinion, concurred, joined by three
judges; Judge Graves dissented, joined by four judges.
Id. at 33a-56a.
SUMMARY OF ARGUMENT
The federal election-day statutes designate a single
day when ballot boxes generally must close, and when
election officials thus must be in receipt of every vote.
A. Federal law fixes “the day” on which “the election” must occur for federal offices. When enacted, the
ordinary meaning of those words was that all votes must
have been received on election day to count. That is so
because on election day, voting needed to be complete;
and it was well settled that the act of voting was complete only when a ballot was received by officials. That
combined action—receipt of a private choice by a public
officer—had to be perfected “on” election day, not after.
Petitioner’s position—that “election” means only the
“final choice” of voters, as defined by state law—has no
basis in that term’s ordinary meaning at the time these
laws were enacted. And in granting total discretion to
7
States over what it means to “cast” a ballot, petitioner’s
reading would permit state laws that no enacting Congress would tolerate. Nor would petitioner, for that
matter, who suggests various atextual limits to avoid
such results. Moreover, petitioner’s reading would invalidate early voting, because it would stretch “the election” for days beyond “the day” on which it must occur.
B. This Court’s sole precedent analyzing the federal
election-day laws confirms “election day” is the day all
ballots must have been received. As this Court explained, “the election” refers to “the combined actions
of voters and officials meant to make a final selection of
an officeholder.” Foster v. Love, 522 U.S. 67, 71 (1997).
The quintessential “combined action” is the official receiving the ballot from the voter. It thus cannot be
“done” after the “federal election day.” Id. at 72.
Against Foster, petitioner relies almost exclusively
on Republican National Committee v. Democratic National Committee, 589 U.S. 423 (2020) (per curiam). But
RNC involved a primary; did not even cite the electionday laws; and did not speak to their meaning.
C. History too reveals a clear connection between
“election day” and ballot-receipt. No State allowed
post-election-day receipt when the first election-day
law was enacted. And that practice remained remarkably consistent through the Civil War—despite powerful
incentives to abandon it—and through the enactment of
the second and third election-day statutes that followed.
Petitioner agrees with all of this. Vet Voice argues
Congress blessed post-election-day receipt when it enacted two laws decades later about overseas-absentee
voting. That is wrong: Those laws permit narrow exceptions for a defined class of voters; they did not upset
the baseline rule for domestic ballots in federal races.
8
D. The statutes’ animating context underscores their
plain meaning. These laws were enacted to stop fraud
and promote confidence in federal elections—at a time
of widespread ballot-stuffing and deep distrust of mailin ballots. There is no doubt that the prospect of having
thousands of absentee ballots pour in for days or weeks
after election day would have been unfathomable to the
enacting Congresses. Rather, then as now, closing the
ballot box on election day is a powerful safeguard
against late-breaking foul play. Petitioner’s contrary
reading would sap much of the force from these antifraud laws, and invite what Congress sought to stop.
ARGUMENT
STATES GENERALLY MUST BE IN RECEIPT OF ALL
VOTES IN FEDERAL ELECTIONS ON “ELECTION DAY”
A. Text
The election-day laws designate “the day” for “the
election.” Because those laws were enacted pursuant to
the Electors and Elections Clauses—which afford Congress “none other than the power to pre-empt”—this
Court must give their text its “fairest reading,” without
any thumb on the scale against preemption. Arizona v.
Tribal Council of Arizona, Inc., 570 U.S. 1, 14-15 (2013).
Best read, “the day” for “the election” means the day
the ballot boxes must close, and officials must be in receipt of all ballots. Petitioner’s reading (at 26)—that the
“election” occurs once voters make their “final choice,”
even if not transmitted to officials—conflicts with the
word’s plain meaning and its surrounding text.
1. The federal election-day statutes set “the day for
the election” for federal offices. 2 U.S.C. 7; see 2 U.S.C.
1; 3 U.S.C. 1, 21(1). When those laws were each enacted,
9
the words “the day” for “the election” conveyed that all
ballots must have been cast and received by that day.
Dictionaries drew a firm link between “election day”
and ballot-receipt. An “election” meant “[v]oting and
taking the votes of citizens.” 1 Anderson’s Law Dictionary 394 (1st ed. 1889). And critically, the “act of
voting was not complete until the ballot was deposited
in the box”—i.e., received. 10 The American and English Encyclopedia of Law 850 (2d ed. 1899). Receipt is
what gave effect to an elector’s choice: “[V]oting by ballot” signified “a mode of designating an elector’s choice
* * * by the deposit of a ticket * * * in a receptacle
provided for the purpose.” Anderson’s, supra, at 104;
see 8 Judicial and Statutory Definitions of Words and
Phrases 7361 (1904) (“[v]oting by ballot is depositing in
a box provided for that purpose” the marked ballot).
“[E]lection day” was thus the “day on which the ballots
are deposited.” 15 Cyclopedia of Law and Procedure
400 (1905). Put differently, the “ordinary signification”
of “election” was the combined “act of casting and receiving the ballots.” 1 John Bouvier, Bouvier’s Law Dictionary and Concise Encyclopedia 979 (8th ed. 1914).
Treatises confirmed this exact point. “Ordinarily a
ballot cannot be counted as a vote until it has been deposited in the ballot box.” 29 C.J.S. Elections 292 (1941).
For that reason, the traditional rule was that “legal
votes, duly offered, at the polls, but not actually deposited in the ballot-box, cannot be counted”—and even
when the elector’s right to vote was disputed, the voter
must at least “offer” his vote to “the officer” for it to be
counted. Halbert E. Paine, A Treatise on the Law of
Elections to Public Offices §§ 516-517, at 435, 437 (1888);
see George W. McCrary, A Treatise on the American
10
Law of Elections § 106 at 79-80 (1875) (vote’s “legality”
settled once it is “received” and “deposited”).
State courts also consistently held that timely voting
meant ballot-receipt on election day. At the time the
election-day laws were passed, “authorities generally”
agreed “the act of voting is not completed until the ballot is deposited in the ballot box,” even if the voter
“marked and transmitted his ballot before election
day.” Goodell v. Judith Basin County, 224 P. 1110, 1113
(Mont. 1924). The “expression ‘vote by ballot’ had a
well-understood and universal meaning,” which was the
“deposit” of the ballot with officials. State ex rel. Runge
v. Anderson, 76 N.W. 482, 484-485 (Wis. 1898). Only
that combined action was understood to perfect a vote.
People ex rel. Twitchell v. Blodgett, 13 Mich. 127, 143144 (1865) (“[W]hen accepted, the vote is complete.”).
So if either part was absent—if the ballot had not been
marked, or if it had not been received—the “act of voting [was] not complete.” Blackwell v. Thompson, 2
Stew. & P. 348, 352 (Ala. 1832). That is why the “act of
choosing,” at the heart of the “meaning of the word election,” entailed the collective “act of casting and receiving the ballots.” State v. Tucker, 54 Ala. 205, 210 (1875);
see Steinwehr v. State, 37 Tenn. (5 Sneed) 586, 589-590
(Tenn. 1858) (deeming only official-receipt necessary).
This is precisely how Congress understood the word
“election” too. The whole “idea” for having one “election”
day was so “the choice of electors” would be “perfected”
on that day. Cong. Globe, 28th Cong., 2d Sess. 14 (1844)
(Rep. Hale). As discussed above, votes were perfected
with their receipt. Only “[t]he final deposit of a legal
ballot in the box is the act of voting.” City of Inglewood
v. Kew, 132 P. 780, 783 (Cal. Ct. App. 1913).
11
Consistent with this settled meaning, Congress’s act
of setting a single “day” for the “election” meant “that
no votes cast after that day should be received.” Cong.
Globe, 28th Cong., 2d Sess., at 15 (Rep. Chilton). And
since “[n]othing short of the delivery of the ballot to the
election officials for deposit in the ballot box constitutes
casting the ballot,” Maddox v. Board of State Canvassers, 149 P.2d 112, 115 (Mont. 1944), the election-day
laws mean that a State must be in receipt of all ballots
on election day for those ballots to be counted.1
This also explains the difference (see Pet. Br. 25) between ballot-receipt and ballot-counting. The “essential
thing in every election” was the “deposit” of “ballots” by
voters. People ex rel. Le Roy v. Foley, 43 N.E. 171, 172
(N.Y. 1896). By contrast, the “canvass of votes or statements is a ministerial act, following the election and evidence of the result.” Ibid. Unlike ballot-receipt, ballotcounting does not make votes legally effective; it merely
ascertains what those votes decided. Only the former
must be completed on election day, because only the former controls if a vote has been “perfected” on time.
2. Petitioner’s textual rejoinder rests (at 24-25) on
dictionaries defining “election” as a “conclusive choice
of an officer.” From these, petitioner asserts (at 25)
that all that is needed for an “election” to “occur[]” is
for voters to have “cast their ballots—marked and submitted them to election officials as state law requires.”
That is wrong. To start, while elections are no doubt
times for “chusing,” U.S. Const. Art. I, § 4, Cl. 1, they
Petitioner tries to dismiss (at 28) Maddox as a state-law decision.
That misses the point: While state law provided the rule of decision
there, the Montana Supreme Court’s interpretation of what it meant
to “cast” a ballot turned on the ordinary “meaning” of the “word,”
not some idiosyncrasy of Montana election law. 149 P.2d at 115.
1
12
are choices effectuated through voting. And what it
meant for a vote to be conclusive was it had to be received by election officials. Petitioner offers no contemporary source indicating a voter could make his vote final through anything less than such receipt. In fact, petitioner concedes (at 9-10, 14) the opposite was the practical understanding for the first half of our history.
That practice reflects not just law but common sense.
After all, if a “conclusive choice” is all that matters, a
State could let voters hand in their ballots (as opposed
to mail them) days or weeks after election day, so long
as they attest they marked them on time. Or it could let
a voter submit a new ballot after election day, if he attests that he mailed his original on time, but it was since
lost or destroyed. Petitioner dismisses (at 40) such laws
as “hypotheticals.” But they are not very different from
current state laws—five of which accept ballots 10 to 21
days after election day,2 and eight of which do not require postmarks for late-arriving ballots.3 And it is predictable that, if petitioner were to prevail here, some
States would take that as a license to innovate. Moreover, while petitioner seems to accept that the hypothetical laws are problematic, he never explains how they
fall outside his frontline definition of an “election.”
2
Alaska Stat. Ann. § 15.20.081(e) (West 2021) (10 days); D.C.
Code § 1-1001.05(a)(10B)(A) (2025) (10 days); Md. Code Regs.
§ 33.11.03.08(B)(4)(a) (2024) (10 days); 10 Ill. Comp. Stat. §§ 5/198(c), 5/18A-15(a) (2023) (14 days); Wash. Rev. Code Ann.
§ 29A.60.190 (West 2019) (21 days).
3
Cal. Elec. Code § 3020(b)(2) (West 2022); D.C. Code
§ 1-1001.05(a)(10B)(A) (2025); 10 Ill. Comp. Stat. § 5/19-8(c) (2023);
Md. Code Regs. § 33.11.03.08(B)(4)(b)(ii) (2024); Nev. Rev. Stat.
Ann. § 293.269921.2 (West 2022); N.J. Stat. Ann. § 19:63-22(a) (West
2022); N.Y. Elec. Law § 8-412(1) (McKinney 2024); Or. Rev. Stat.
Ann. § 253.070(4) (West 2022).
13
Recognizing the problem, petitioner declares (at 25)
the “plain-text” of the election-day laws also requires a
ballot to be “marked and submitted” by election day.
But that is completely atextual on petitioner’s view: If
the “plain meaning” of “election” is a voter’s “conclusive
choice” (at 24), there is no reason a ballot must be submitted before election day any more than it must be received. A voter can make a final choice without either.
Plus, even as petitioner insists ballot-submission is
required, he severs that concept from its historical
mooring of official receipt. In its place, petitioner just
announces (at 25) that “submitted” means whatever
“state law” says. Petitioner makes this argument because he must: Under Mississippi’s law, a voter does
not even need to give his ballot to someone who works
for the State (or any government) on “election day.”
Miss. Code Ann. § 23-15-637(1)(a) (West Supp. 2024) (allowing mail by “common carrier[s]” like “FedEx”). But
here too, petitioner offers no contemporary source asserting that States had complete discretion under the
election-day-laws to brand a vote as timely no matter
where it goes—whether the hands of a private party
(like FedEx) or a separate sovereign (as with USPS).
And here too, petitioner’s view would allow for state
laws Congress never would have tolerated in 1845, 1872,
or 1914. Perhaps most glaring, there is no principled
difference between FedEx and any other private party.
There is thus no reason why, on petitioner’s reading, a
State could not let voters “submit” mail-in ballots to
family members, community organizers, or even party
officials—just so long as they were brought to election
officials later. But that strains “the day” for “the election”
beyond all plausible meaning. If the election-day Congresses were asked whether dropping a ballot in a bag
14
held by a party apparatchik could count as timely voting
under federal law, the answer would be obvious.
Petitioner suggests (at 27) mail is different because
the voter has surrendered control over the ballot. But
as the court of appeals explained, voters are able to “recall” mail once sent—including ballots. Pet. App. 12a.
Petitioner dismisses (at 41) this as impractical. But any
practical barriers are dwindling, as more States adopt
later received-by deadlines (and allow private carriers
to carry ballots). P. 12 nn.2-3, supra. Regardless, such
practical barriers are doubly irrelevant in distinguishing the mail from other ballot-delivery services: It
may also be impractical to get ballots back from ballotharvesters, and any difficulty in exercising continued
control over the ballot does not negate the right to control until the ballots are received by election officials.
Vet Voice emphasizes (at 30) a voter cannot “change
their vote” after election day, even if they recall the ballot. But a canceled vote affects an election as much as a
cast one. So long as voters retain the ability to cancel
their votes, it is impossible to say the “election” is over.
Nor is the “mailbox rule” relevant. DNC Br. 10.
Where Congress wants to adopt that rule, it does so expressly. See, e.g., 26 U.S.C. 7502(a) (tax day). And the
federal election-day laws would be an especially poor
context to infer that rule’s applicability, as there was no
pedigree to such a rule in elections. See Burroughs v.
Lyles, 181 S.W.2d 570, 573 (Tex. 1944) (registration sent
on due-date was late because it arrived after that day).
3. Petitioner’s view of “election,” once plugged back
into the rest of the text, would also outlaw early voting.
The election-day laws fix “the day for the election”
(for Congress) and the “election day” “on” which electors shall be appointed (for President). 2 U.S.C. 7, 1;
15
3 U.S.C. 1, 21(1). Thus, whatever “election” means, it
must happen “on” a single “day”—“the day for the election.” If petitioner were correct (at 23) that “[a]n ‘election’ is the conclusive choice” made by voters “when
they * * * mark and submit [their ballots],” then early
voting would plainly be barred by the federal electionday statutes. That “election” would happen over multiple days, stretching well before “the day” “on” which it
must occur. Such a problem does not exist if “election
day” is understood as the day on which the ballot box
closes and officials must be in receipt of every ballot.
B. Precedent
1. This Court’s sole decision on the federal electionday statutes confirms what their plain text compels.
In Foster v. Love, 522 U.S. 67 (1997), this Court reviewed a state law that allowed congressional races to
conclude in October if the candidate won a majority in
the “open primary” that month. Id. at 70. This Court
held the law preempted, reasoning that the election-day
statutes barred a State from “consummat[ing]” a congressional race “before the federal election day, with no
act in law or in fact to take place on the date chosen by
Congress.” Id. at 72 & n.4. In so doing, Foster drew
two conclusions that bear heavily on this case.
First, the Court held that “[w]hen the federal statutes speak of ‘the election,’ ” they “plainly refer to the
combined actions of voters and officials meant to make
a final selection of an officeholder.” 522 U.S. at 71. As
detailed above, the key “combined action” is the receipt
of the ballot by the official from the voter. That is why
courts referred to the “casting and receiving” of ballots
together, Norman v. Thompson, 72 S.W. 62, 63 (Tex.
1903), or even read “cast” to necessarily include receipt,
Maddox, 149 P.2d at 115. And it is why courts held that
16
“voting” was not complete until a ballot was “receive[d]”
by “[e]lection-officers.” A.T. & Santa Fe R.R. v. Commissioner of Jefferson County, 17 Kan. 29, 38-39 (1876).
Second, while disclaiming the need to supply a comprehensive “definition[]” of “election,” the Court made
clear that its core aspects are “acts a State must cause
to be done on federal election day (and not before it).”
522 U.S. at 71-72. That confirms why early voting would
be outlawed if “election” means nothing more than
“choice”: Those “acts,” unlike the closing of the ballot
box, would occur well “before” the “federal election
day”; indeed, if everyone voted early, the election would
be over before that day, contrary to Foster. Id. at 72.
2. Petitioner has no answer to Foster. At most, he
repeats (at 27, 40) that the only “combined action[]” required for an “election” is for voters to have “marked
and submitted their ballots” as the “state law requires.”
This suffers from multiple infirmities. It cannot explain early voting. And it does nothing to distance petitioner’s view from the hypothetical laws discussed earlier. Petitioner’s reading of “combined action” also falters on its own: Filling out an absentee ballot at home
and handing it to FedEx is not a “combined action” with
the government in any intuitive sense. A “combined action” is one done together—e.g., the handoff of the ballot to the official (either personally or via a third-party).
Moreover, history forecloses petitioner’s claim that
“combined action” means simply using the ballot. As
petitioner elsewhere acknowledges (at 13), for most of
the 19th century, “voters prepared their own paper ballots” or used ones “prepared by parties.” See Burson
v. Freeman, 504 U.S. 191, 200 (1992) (plurality opinion).
But the “meaning of election” has held constant since
the Founding. Newberry v. United States, 256 U.S. 232,
17
250 (1921). Thus, then as now, it cannot be that ballotuse is the “combined action[]” at the core of “the election.” Foster, 522 U.S. at 71. Rather, then as now, what
matters is official receipt of the ballot—that is what cannot be “done” after the “federal election day.” Id. at 72.
3. The primary precedent invoked by petitioner (at
27-28, 37, 42) is the order granting a stay in Republican
National Committee v. Democratic National Committee, 589 U.S. 423 (2020) (per curiam). The single sentence cited cannot bear the weight placed on it.
To start, RNC involved a primary election, and thus
did not even mention the federal election-day statutes.
Nor did the Court offer any definition of “election” (let
alone one different from Foster). Instead, the Court
merely made the sensible observation that “[e]xtending
the date by which ballots may be cast by voters—not
just received by the municipal clerks but cast by voters
—for an additional six days after the scheduled election
day fundamentally alters the nature of the election.”
RNC, 589 U.S. at 424; see id. at 425-426 (similar).
Petitioner reads this remark (at 25) to endorse the
inverse—that changes to a receipt-deadline would not
“fundamentally alter[]” the “nature of the election.”
That is illogical. Recognizing that additional votingdays are a bigger deal than additional receipt-days
hardly implies the latter do not alter the nature of the
election at all. See Pet. App. 24a. And RNC made explicit that it was not addressing the issue. See 589 U.S.
at 426 (“stress[ing]” the “narrow” issue addressed).
Petitioner also invokes (at 29-30) three state-court
cases. None helps. Each asked whether the state constitution permitted a soldier to vote outside his home
district. None involved a law extending the ballotreceipt deadline past election day (Part C.1, infra). And
18
none adopted a different definition of “election” that
broke from the established view (Part A.1, supra).
Vet Voice cites (at 26-27) two additional state-court
cases. But the New Hampshire case did not involve a
post-election-day deadline at all—as Vet Voice concedes
(at 27 n.6)—and for that matter, expressed skepticism
that votes for the House could be “cast” any other way
than in-person “on” election day. In re Opinion of the
Justices, 113 A. 293, 299 (N.H. 1921). The Kansas case
quotes from an outlier law (Part C.2, infra) that allowed
post-election-day receipt, but the court does not analyze
that aspect of the law at all. Burke v. State Board of
Canvassers, 107 P.2d 773, 775-776, 778 (Kan. 1940).
C. History
History offers powerful confirmation that “the day”
for “the election” means the day that ballot boxes close.
Indeed, from the first election-day statute through the
last, States consistently provided that ballots must have
been received by officials on election day—including
during the Civil War. Nor does modern practice change
the picture. While Congress has twice fashioned a narrow exception to the federal deadline for overseas ballots, it has never disrupted the rule long-governing domestic ballots. That new tail cannot wag this old dog.
1. Practice Surrounding the Election-Day Statutes
a. Absentee voting was unknown in England and virtually nonexistent in America for our first 70-plus years.
See Floyd R. Mechem, A Treatise on the Law of Public
Offices and Officers § 187, at 116 (1890). Come the first
election-day statute, “election day” was necessarily the
day when all “ballots must be received.” Pet. App. 14a.
That understanding held constant through the Civil
War, when certain States sought to change their voting
19
laws so that soldiers away fighting for the Republic
would not lose their voice in its future. Josiah Henry
Benton, Voting in the Field: A Forgotten Chapter of the
Civil War 4 (1915) (Benton). Even then, States provided that any absentee soldier-ballots must have been
received “on” election day. Pet. App. 16a.
Most analogous to today’s mail-in ballots, some
States adopted “proxy voting,” where a soldier would
“prepare his ballot in the field and send it to some one,
as his proxy, to cast into the ballot box in his voting precinct at home.” Benton 15. But this new method operated under old rules: A soldier’s “ballot was not cast
until it was deposited in the ballot box by the inspectors
of the township at home.” Benton 91. That is, a soldier
did not “vote[] until [his] ballot has been carried to his
election district in [the] State, and [was] there received
and deposited in the proper place.” Benton 149. It was
not enough that a soldier rendered a “final choice” (Pet.
Br. 24) by election day, or even “marked and submitted”
(Pet. Br. 25) a ballot by that day. Instead, every proxyvoting State required that ballots have been received on
election day to count. See Benton 15; Pet. App. 16a.
Other States undertook massive efforts to bring “the
ballot box to the soldier in the field.” Benton 15. Importantly, these field-voting States were careful to
deputize “officers or soldiers to act in an election as constables, supervisors, etc., as the laws of the State might
designate.” Benton 17. This meant that elections
in the field would be like “elections at home,” and a soldier could timely “cast his ballot” in a proper “voting
precinct”—where it would be received by a state election official on the day of the election. Benton 15, 17.
For instance, in Kansas, the Governor had a designee deliver “poll books” to the field; required the
20
selection of “three judges and two clerks to hold the
election”; had the judges and clerks “take an oath to
properly conduct the election according to the statute”;
and then had them supervise an elaborate process that
culminated in “the ballot [being] deposited in the ballot
box.” Benton 115-116. Likewise, in Maine, military officials were “made ‘supervisors’ of elections” and were
“sworn to support the Constitution of the United States
and the State of Maine, and to faithfully and impartially
perform their duties” administering the election—at
which point those officers would “prepare a ballot box”
for “receiving” ballots from the qualified soldiers. Benton 122-123. Indeed, for Union and Confederacy alike,
the general practice was to deputize their military officials, swear them in, and have them conduct an election
consistent with how it would have been done at home.4
These intensive efforts would have made little sense
if the timing of ballot-receipt did not matter. Contrary
to petitioner’s speculation (at 33), it would have been
possible for officials at home to decide a soldier’s “qualifications” before counting his vote. Instead, these
measures were necessary for there to be “real voting in
the field,” Benton 317, and for the “act of voting” to be
actually completed on election day, Benton 15.
b. Petitioner does not dispute that every Civil Warera absentee-ballot law required that soldier-ballots
have been received by officials on election day. Pet. Br.
See generally Benton 30-31 (North Carolina), 32-33 (Tennessee),
33-34 (Virginia), 34-35 (Alabama), 36 (Georgia), 36-38 (South Carolina), 39 (Florida), 43 (Missouri), 49-50 (Iowa), 54, 63-64 (Wisconsin),
71-72 (Minnesota), 74 (Ohio), 87-88 (Vermont), 100-101 (Michigan),
106 (Kentucky), 129 (California), 156 (New York), 171-172 (Nevada),
180 (Connecticut), 186-187 (Rhode Island), 201-203 (Pennsylvania),
217-218 (New Hampshire), 239-240 (Maryland).
4
21
11-12. His only rejoinder (at 33, 43) is that this was
purely a policy choice. But where uniform practice followed a law’s ordinary meaning, the more natural explanation is that the law’s import was plain to all. What’s
more, if an “election” did not dictate ballot-receipt timing, it is strange no State loosened the rules for soldiers
in the field—including proxy-voting States, which easily
could have deemed soldier-ballots timely by their postmark. Cf. James W. Milgram, Federal Civil War Postal
History 281-283 (2007) (describing soldier-ballots).
Likewise, if this were all a matter of flexible policy, it is
hard to see why, as noted, some States opted to furlough
active-duty soldiers so that they could vote at home on
election day. See Benton 226-227, 291.
Vet Voice claims (at 34-35) that, in three States that
allowed soldiers to submit their ballots in the field on election day, those ballots were only received by proper election officials at home (necessarily later). This would not
be very helpful even if right: At least 20 States adopted
absentee voting during the Civil War (see p. 20 & n.4,
supra; Pet. Br. 10); if at most three States loosened the
election-day rule amidst the breakdown of all domestic
order, that would only confirm the strength of the practice going the other direction. Cf. New York State Rifle
& Pistol Ass’n v. Bruen, 597 U.S. 1, 70 (2022).
At any rate, Vet Voice is wrong. Under Pennsylvania’s soldier-voting law, deputized “judges and clerks”
were required to “take an oath or affirmation” before
“any votes shall be received,” and were tasked with receiving each ballot, inspecting the voter’s qualifications,
and (if qualified) placing it “in the box” for ballots. 1864
Pa. Laws 1848; see Benton 202. Similarly, Rhode Island
empowered “commanding” officers to receive and
22
“certif[y]” ballots from soldiers. 1864 R.I. Acts & Resolves 4; see William P. Hopkins, The Seventh Regiment
Rhode Island Volunteers in the Civil War 227 (1903)
(describing “varied” “[p]olls” within camps). And Nevada
charged the “three highest officers in command” with receiving and tallying ballots, so that soldier-votes “shall
be considered” effectively cast at home on the election
day. 1866 Nev. Stat. 215; see Benton 171.
Without support, Vet Voice claims (at 35) these military officers were not effectively deputized as “real
election officials.” Vet Voice seems to take issue with
the relative lack of formality that some States used in
placing this mantle on their officers. But what matters
is not how “the laws of the State might [have] designate[d]” them; what matters is each State affirmatively
took legislative action to do so. Benton 17. And in each
example, the State provided (in some form or another)
for the “appointment” of military officials to administer
elections—a power they otherwise lacked, and a power
they were given so they could receive ballots. Ibid.
c. After the Civil War, absentee-ballot laws “disappeared” and the practice broadly fell into disuse until a
“reform period” began in 1911. John C. Fortier & Norman J. Ornstein, The Absentee Ballot and the Secret
Ballot: Challenges for Election Reform, 36 U. MICH. J.
L. REFORM 483, 501 (2003) (Fortier & Ornstein). Neither
petitioner nor Vet Voice identifies any state-absentee
law that allowed for post-election-day receipt before
1914, when the last election-day law was enacted.
Vet Voice observes (at 35-36) certain States allowed
absentee voting “elsewhere within the State on election
day.” But that is irrelevant. It does not matter where
a ballot is received by a State’s election officials; what
matters is when it has been received. As for the latter,
23
the historical record is overwhelming that the deadline
was “on election day”—when the ballot box closed.
2. Practice Following the Election-Day Statutes
a. Absentee-voting laws spread “rapidly” across the
Nation during the first World War and continued apace
in the years leading up to the second. P. O. Ray, AbsentVoting Laws, 18 Am. Pol. Sci. Rev. 296, 321 (1924); see
Fortier & Ornstein 504-506. By 1938, at least 44 States
had enacted some form of absentee voting. Paul G.
Steinbicker, Absentee Voting in the United States, 32
Am. Pol. Sci. Rev. 898, 898-899 (1938) (Steinbicker).
Still, “even during the height of war-time exigency,”
Pet. App. 16a, the “usual requirement” remained that
ballots must be “received on or before the day of election,” Steinbicker 906. And as late as 1977, only two
States still allowed post-election-day receipt. Pet. App.
17a. Indeed, petitioner concedes (at 10, 14) that widespread post-election-day receipt is an exclusively modern phenomenon. It is thus neither “longstanding” nor
“consistent”; it is the sort of post-enactment practice
that more often marks a departure from a law’s original
meaning than a delayed elucidation of it. United States
v. Rahimi, 602 U.S. 680, 724 (2024) (Kavanaugh, J., concurring); see Coney Island Auto Parts Unlimited, Inc.
v. Burton, No. 24-808, slip op. 5 (Jan. 20, 2026) (“ ‘[T]ext
and structure’ take priority over historical practice.”).
b. Vet Voice relies heavily (at 38-46) on the fact Congress passed two statutes during the 20th century that
incorporated state-law ballot-receipt deadlines for certain
voters overseas: the 1942 Soldier’s Vote Act (SVA), ch.
561, 56 Stat. 753 (50 U.S.C. 301 et seq.), and the 1986
Uniformed and Overseas Citizens Absentee Voting Act
(UOCAVA), Pub. L. No. 99-410, 100 Stat. 924 (52 U.S.C.
20301 et seq.). Vet Voice is right that a small minority
24
of States allowed post-election-day receipt during
World War II, and a slightly larger minority allowed
such receipt by the 1980s. See Vet Voice Br. 41-42, 4546. But Vet Voice is wrong about the import of the two
federal laws. Neither upends the deadline generally imposed by the election-day statutes. Rather, they mark
“narrow” exceptions that authorize post-election-day
receipt for a tailored “class[] of voters.” Pet. App. 33a.
In the SVA, Congress initially set the deadline for
federal “war ballot[s]” to be “the closing of the polls on
the date of the holding of the election,” § 9, 56 Stat. 756,
but soon amended that deadline so that “any extension
of time for the receipt of absentee ballots permitted by
State laws shall apply to ballots cast under this title,”
Act of Apr. 1, 1944, ch. 150, § 311(b)(3), 58 Stat. 146.
Likewise, in UOCAVA, Congress provided that absentee ballots of “uniformed services voters or overseas
voters” must be counted so long as received by the
state-law deadline designated for ballot-receipt. 52
U.S.C. 20303(b) and (d); see 52 U.S.C. 20304(b)(1) (directing officials to facilitate such ballots).
By their terms, neither statute says anything about
the receipt of absentee ballots writ large. The SVA concerned (now defunct) “war ballots,” and UOCAVA covers “uniformed services voters and overseas voters.”
Each addressed a specific issue—the difficulty in voting
for certain Americans away from home—and did so in
the specific fashion of extending for those voters the general deadline for ballot-receipt. Accordingly, contrary
to Vet Voice’s warnings of mass disruption (at 7 & n.3),
UOCAVA-ballots may be received after the federal
election day, so long as timely under relevant state law.5
Because UOCAVA carves out a class of voters from the federal
election-day deadline, the district court was correct in Harris v.
5
25
Vet Voice argues (at 32) that in making use of these
post-election-day deadlines for some ballots, Congress
implicitly endorsed their lawfulness as to all ballots.
That does not follow. States have always been free to
set whatever deadlines they wish for absentee ballots
involving state offices; and in UOCAVA (plus the SVA
before), Congress incorporated those deadlines for a
narrow class of federal voters, departing to that extent
from the election-day laws’ general rule. See RadLAX
Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S.
639, 645 (2012). For all other federal voters, neither
UOCAVA nor the SVA “conflict[s]” with the electionday ballot-receipt deadline under the election-day statutes; accordingly, this Court must “give effect” to the
“normal operations” of those “preexisting law[s].” Epic
Systems Corp. v. Lewis, 584 U.S. 497, 510-511 (2018).
Vet Voice observes (at 42-44, 49-51) there is no legislative history indicating Congress saw state post-electionday deadlines as unlawful—and no further legislative
action banning them, even as they have grown more
popular. Yet that is a “ ‘particularly dangerous’ basis on
which to rest an interpretation of an existing law a different and earlier Congress did adopt.” Bostock v.
Clayton County, 590 U.S. 644, 670 (2020). It is wrong
to assume that in sanctioning a narrow application of a
given practice, Congress was implicitly blessing all of it.
c. Indeed, especially so here, given that when Congress has considered domestic absentee voting for civilians, it has refused to extend the ballot-receipt deadline
Florida Elections Canvassing Commission, 122 F. Supp. 2d 1317
(N.D. Fla. 2000), when it counted overseas military ballots that were
timely under state law. Id. at 1323-1325. That is similarly why federal courts may enforce or order extensions of state-law ballotreceipt deadlines as to UOCAVA-ballots. Cf. Gov’t C.A. Br. 30-32.
26
beyond “election day.” Most relevant, when Congress
amended the Voting Rights Act (VRA) in 1970 to establish national rules for absentee voting in presidential
races, it specified that “such ballots” must be “returned”
to the “appropriate election official of such State 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). And Congress did so even though “aware several States permitted post-election day ballot receipt.” Vet Voice Br. 43.6
Vet Voice responds (at 44) that the statute also says
“[n]othing in this section shall prevent any State * * *
from adopting less restrictive voting practices than those
that are prescribed herein.” 52 U.S.C. 10502(g). But
that provision merely authorizes States to go above the
floor “prescribed” in Section 10502 for absentee balloting in presidential elections; it does not allow States to
exceed ceilings imposed by other provisions of federal
law. Nobody would claim Section 10502(g) empowers
States to adopt the “less restrictive” practice of allowing ballots to be cast in federal elections weeks after
election day. Section 10502(g) no more authorizes violations of the election-day laws’ ballot-receipt deadline.
The Help America Vote Act of 2002 (HAVA), Pub. L.
No. 107-252, 116 Stat. 1666 (52 U.S.C. 20901 et seq.), fits
the same pattern. In providing for provisional ballots
under certain circumstances, the Act provides that any
such ballot must be “cast” by election day, by having the
voter complete his ballot at a “polling place,” and there
Vet Voice is wrong (at 40) to say the VRA’s deadline would be
“superfluous” if the election-day laws already required as much. Allowing for receipt “on” election day extended the deadline in States
that required absentee-ballot receipt before then, which a number
did at the time of the VRA amendments. See, e.g., 116 Cong. Rec.
28,876 (1970) (cataloging States).
6
27
transfer it to an “election official.” 52 U.S.C. 21082(a).
While the State can decide later whether to count that
ballot (if a voter is qualified), HAVA is designed so the
provisional ballot is necessarily received by officials on
election day—just as the election-day statutes require.7
D. Context
1. The federal election-day laws’ animating context
further confirms their plain meaning. When Congress
enacted these statutes, its main “object” was to “prevent fraud,” Cong. Globe 28th Cong., 1st Sess. 679
(1844) (Rep. Allen), and more broadly, “preserv[e] public confidence” in federal elections, Morley Br. 8. By
those lights, it is unthinkable that the enacting Congresses would have read the election-day laws to permit
the widespread practice of post-election-day ballot receipt—as petitioner insists they do. That is a “powerful
indication” that petitioner’s interpretation “has made a
mess of the statute.” Hamdan v. Rumsfeld, 548 U.S. 557,
669 (2006) (Scalia, J., dissenting).
Multiple types of fraud afflicted elections in the 19th
century. Burson, 504 U.S. at 200-202. Most relevant,
two strands involved ballot-box stuffing and mail-in-ballot manipulation. As for ballot-box stuffing, it was common for elections to be stretched out, so party bosses
could add votes in one place to make up for losses
Vet Voice is wrong (at 50) to rely on the Electoral Count Reform
and Presidential Transition Act of 2022, Pub. L. No. 117-328, Div. P,
Tit. I, 136 Stat 5233. That Act neither substantively amended the
relevant statutory text nor presumed the validity of state laws allowing post-election-day ballot-receipt in presidential elections. See
§ 1, 136 Stat. 5233-5234. Congress therefore did not address ballotreceipt at all—let alone generally sanction, explicitly or implicitly,
state post-election-day deadlines for ballot-receipt. See Rapanos v.
United States, 547 U.S. 715, 750-752 (2006) (plurality opinion).
7
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elsewhere. H.R. Rep. No. 31, 40th Cong., 3d Sess. 49
(1869), at 47-50 (1869) (detailing canvassing “delay[s]”);
see id. at 77-78 (proposing single election day as a “remedy” for ballot-box fraud); see also McCrary, supra,
§ 393 at 287 (describing “very frequent[]” practice of
“tampering with the ballots after they are cast”); Keisling, 259 F.3d at 1172-1174 (9th Cir. 2001) (cataloging
“great frauds” flagged by Congress that occurred when
some States kept ballot box open longer than others). As for mail-in ballots, the Nation had grown especially concerned that the “proxies” first created during
the Civil War were “readily and without the possibility
of detection change[d]” to swing elections. Frauds on
Soldier Votes, Rochester Daily Union & Advertiser,
Nov. 1, 1864, at 3; see Oscar Osburn Winther, The Soldier Vote in the Election of 1864, 25 N.Y. Hist. 440, 449454 (1944). Indeed, one of the biggest scandals of
the time involved just that, to the tune of hundreds of
ballots. Tracy Campbell, Deliver the Vote: A History of
Election Fraud, An American Political Tradition 5556 (2005); see Benton 168 (New York “proxy voting” law
was “full of opportunities for mistake and for fraud”).
If imposed at the time, petitioner’s interpretation
would have clearly created ample fodder for bad actors
to continue to perpetrate those well-known types of
fraud. Staggered ballot-box-closure deadlines across
State lines would have created major incentives and opportunities for ballot-box stuffing. Such staggered
deadlines would further have encouraged and enabled
the “flagitious frauds from the transfer of votes from
one State to another,” as States closed their ballot boxes
on different days. Cong. Globe, 28th Cong. 2d Sess., at
28 (Rep. Rhett). And similarly, keeping ballot boxes
open for days or weeks on end would have increased the
29
incentives and opportunities for manipulation of mail-in
votes—all while cloaked in a legitimacy that would otherwise elude late-discovered (yet dispositive) ballots.
Nor have those concerns about fraud become obsolete since. To this day, “chaos and suspicions of impropriety” typically follow when “thousands of absentee
ballots flow in after election day” and “flip the results of
an election.” Democratic National Committee v. Wisconsin State Legislature, 141 S. Ct. 28, 33 (2020) (Kavanaugh, J., concurring in denial of application to vacate
stay). “If the apparent winner the morning after the
election ends up losing due to late-arriving ballots,
charges of a rigged election could explode.” Richard H.
Pildes, How to Accommodate a Massive Surge in Absentee Voting, U. Chi. L. Rev. Online 45, 46 (2020). And
those charges would not be unfounded. After all,
“[f]raud is a real risk that accompanies mail-in voting.”
Brnovich v. Democratic National Committee, 594 U.S.
647, 686 (2021); accord Crawford v. Marion County
Election Board, 553 U.S. 181, 195-196 (2008) (Stevens,
J.); Republican Party of Pennsylvania v. Degraffenreid, 141 S. Ct. 732, 735-736 (2021) (Thomas, J., dissenting from the denial of certiorari). As in the nineteenth
century, leaving the ballot box open after election day
creates incentives and opportunities for bad actors to
attempt to flip the outcomes of close elections through
late-arriving mail-in ballots. And that is especially true
in States that prolong when ballots may be received,
and further do not even require a postmark for a ballot
to be counted. P. 12, nn.2-3, supra. At minimum, those
concerns risk undermining the very public confidence in
election outcomes the enacting Congresses sought to
safeguard. Cf. Wisconsin, 141 S. Ct. at 33 (Kavanaugh,
J., concurring in denial of application to vacate stay).
30
In short, Congress passed the election-day laws to
“remov[e] the possibility of introducing fraud to any
great extent.” Cong. Globe 28th Cong., 1st Sess., at 679
(Rep. Atherton); see Cong. Globe, 42d Cong., 2d Sess.
618 (1872) (Sen. Thurman). Then as now, that goal is
furthered when all votes must be “perfected” on election day. Cong. Globe, 28th Cong., 2d Sess., at 14 (Rep.
Hale). But it is very much not when States can receive
ballots for days or weeks on end, even absent a timely
postmark. Thus, only one reading achieves Congress’s
goal of ensuring “that no votes cast after [election] day
should be received,” Cong. Globe, 28th Cong., 2d Sess.,
at 15 (Rep. Chilton)—because the only way to ensure a
vote is cast on time is for it to be received on time.
2. Petitioner insists (at 31) Congress was only worried about one type of fraud—voters moving across
States to vote multiple times. But if Congress was worried about bad actors sending men to exploit open ballot
boxes, it follows a fortiori it would have been concerned
about the same thing by way of mail. Regardless, “statutory prohibitions often go beyond the principal evil to
cover reasonably comparable evils,” Oncale v. Sundowner
Offshore Services, Inc., 523 U.S. 75, 79 (1998), and the
risk of fraud is at least “reasonably comparable” here.
Relatedly, Vet Voice is wrong (at 31) that a receivedby deadline of election day would “disenfranchise[]”
voters. “[T]hat is not what a reasonable election deadline does.” Wisconsin, 141 S. Ct. at 35 (Kavanaugh, J.,
concurring in denial of application to vacate stay). An
election cannot exist “without deadlines.” Id. at 33.
Every mail-in voter thus must account for delays to
meet whatever deadline exists. Requiring a voter to account for that universal reality does not “‘disenfranchise’ anyone under any legitimate understanding of
31
that term.” Id. at 35. And of course, a voter can always
avoid the risks that accompany the privilege of absentee
voting by simply choosing to “vote in person.” Id. at 36.
All told, amidst “rampant” fraud and a corresponding trend of “stricter election laws,” the election-day
statutes emerged as an important election-integrity
measure. Joseph P. Harris, Election Administration
in the United States 319 (1934). In joining that trend,
Congress did not leave open the prospect States could
“extend the period” for accepting votes “by one day, five
days, or 100 days.” Pet. App. 26a. Instead, in setting a
uniform “election day” for the Nation, Congress mandated what those words have always required: On election day, the ballot box must close, and every vote must
have been received.
32
CONCLUSION
This Court should affirm the judgment below. 8
Respectfully submitted.
D. JOHN SAUER
Solicitor General
HARMEET K. DHILLON
Assistant Attorney General
HASHIM M. MOOPPAN
Deputy Solicitor General
JESUS A. OSETE
Principal Deputy Assistant
Attorney General
HARRY S. GRAVER
Assistant to the
Solicitor General
ANDREW G. BRANIFF
DAVID N. GOLDMAN
Attorneys
FEBRUARY 2026
In affirming, this Court should make clear Mississippi’s law is
not preempted as applied to UOCAVA-ballots, see pp. 24-25, supra,
and that application should be preserved in “fashion[ing] appropriate relief,” Pet. App. 24a-25a; see id. at 33a.
8
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.