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

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No. 24-1260

In the

Supreme Court of the United States

MICHAEL WATSON,

MISSISSIPPI SECRETARY OF STATE,

Petitioner,

v.

REPUBLICAN NATIONAL COMMITTEE, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF AMICUS CURIAE

THE CLAREMONT INSTITUTE’S CENTER

FOR CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF RESPONDENTS

JOHN C. EASTMAN

Counsel of Record

ALEXANDER HABERBUSH

Constitutional Counsel Group

444 W. Ocean Blvd., Ste. 1403

Long Beach, CA 90802

(562) 435-9062

jeastman@ccg1776.com

Counsel for Amicus Curiae The Claremont Institute’s

Center for Constitutional Jurisprudence

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ v

INTEREST OF AMICUS CURIAE.............................1

SUMMARY OF ARGUMENT .....................................2

ARGUMENT ...............................................................4

I. The Constitution’s Design Makes a Single Day for

Federal Elections a Structural Safeguard Against

Cabal, Undue Influence, and Strategic

Manipulation. ......................................................... 4

A. The Founding-Era Understanding Was

That Extending Elections Over Time

Creates Opportunities for Intrigue and

Influence That a Republic Must Avoid. .......... 5

B. The Same Logic Supports Congress’s

Power to Require a Single Day for the

Popular Election That Appoints Electors

and Elects Representatives............................. 8

C. Congress’s Current Presidential-Election

Framework Defines “Election Day” and

Confirms That Electors Must Be

Appointed on That Day. .................................. 9

II. Congress Implemented the Constitution’s “Single

Day” Safeguard Through the Election Day

Statutes, Which Require the Election – The Act of

Choosing – to Be Completed on the Prescribed

Day........................................................................ 11

A. The Text: Congress Set a “Day” for the

Election, Not a Multi-Day Window. ............. 11

ii

B. Congress’s 1845 Presidential-Elector

Statute Was Enacted to Prevent Fraud

and Strategic Timing – Concerns That

Apply With Full Force to Post-Election

Receipt Rules. ................................................ 13

C. Congress’s Original Election-Day Statute

Included Only a Narrow Contingency

Proviso – Confirming That Election Day Is

the Day of Choice........................................... 14

III. This Court’s Precedent Confirms That the

Election Day Statutes Fix the Day the Election Is

“Consummated,” and States May Not Shift That

Consummation Earlier or Later. ......................... 15

A. Foster Holds That the Federal “Day for the

Election” Is the Day on Which the Election

Is Held – Not Merely a Deadline for

Counting. ....................................................... 15

B. Elections-Clause Preemption Is Real

Preemption: When Congress Sets the

Time, Conflicting State Rules Must Yield.... 16

C. This Court’s Emergency-Election Cases

Reflect the Same Baseline Principle:

Courts and States Should Not Extend

Elections Beyond the Day Set by Law.......... 17

IV. Mississippi’s Post-Election-Day Receipt Rule

Conflicts With Federal Law Because a Ballot Is

Not “Cast” in the Election Until It Is Delivered

Into the Custody of Election Officials. ................ 18

A. The Original Understanding of an

“Election” Presupposes a Public, Legally

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Supervised Act That Closes on the Day

Prescribed. ..................................................... 19

B. Treating a Postmark as the Moment the

Vote Is Cast Detaches the Election From

Public Administration and Undermines

the Uniform-Day Safeguard. ........................ 20

C. Mississippi’s Rule Conflicts With 3 U.S.C.

§ 1 Because It Means Electors Are Not

Truly “Appointed” on the Day Congress

Prescribed. ..................................................... 22

V. Extending Receipt and Counting Beyond Election

Day Revives the Evils the Founders and Early

Congresses Sought to Avoid, and It Undermines

the National Character of Federal Elections. ..... 23

A. The Founders’ Concerns About “Cabal,”

“Combination,” and “Foreign Influence”

Are Heightened When the Election

Becomes Temporally Extended..................... 23

B. Congress’s Uniform-Day Rule Serves

National Unity and Public Legitimacy –

Values Damaged When States Define

Federal Elections Over Multiple Days. ........ 24

C. Congress Has Power to Create Specific

Exceptions – and Has Done So in Limited

Contexts – Which Confirms the General

Rule That the Election Must Be

Completed on Election Day. .......................... 25

D. Congress’s Targeted Accommodations for

Military and Overseas Voters Confirm

That States May Not Unilaterally Extend

the Federal Election Day .............................. 26

iv

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

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TABLE OF AUTHORITIES

Cases

Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S.

1 (2013). ............................................................ 16, 25

Brnovich v. Democratic National Committee, 594

U.S. 647 (2021).........................................................1

Bush v. Gore, 531 U.S. 98 (2000) .......................... 1, 24

Evenwel v. Abbott, 578 U.S. 54 (2016) ........................1

Ex parte Siebold, 100 U.S. 371 (1879). .....................16

Foster v. Love, 522 U.S. 67 (1997). .3, 12, 15-19, 22, 24

Moore v. Harper, 600 U.S. 1 (2023) ............................1

Purcell v. Gonzalez, 549 U.S. 1 (2006). .....................17

Republican Nat’l Comm. v. Democratic Nat’l Comm.,

589 U.S. 423 (2020)................................................17

Republican Nat’l Comm. v. Wetzel, 120 F.4th 200

(5th Cir. 2024). .........................................................3

Statutes

2 U.S.C. § 7 .......................................... 3, 11, 16, 21, 23

3 U.S.C. § 1 ...................................3, 4, 9-12, 17, 21, 23

3 U.S.C. § 2 ................................................................14

3 U.S.C. § 21. ......................................................... 9, 24

52 U.S.C. § 20302. .....................................................25

52 U.S.C. § 20303. .....................................................25

Fla. Stat. § 101.67. ....................................................24

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Jan. 23, 1845, ch. 1, 5 Stat. 721 ...................... 3, 12, 14

Miss. Code Ann. § 23-15-637 ..................... 3, 17, 20, 21

Other Authorities

Cassius VI, Massachusetts Gazette, Dec. 18, 1787,

reprinted in 5 THE DOCUMENTARY HISTORY OF THE

RATIFICATION OF THE CONSTITUTION,

Massachusetts No. 2 (John P. Kaminski et al. eds.,

1998) .........................................................................8

Cong. Globe, 28th Cong., 2d Sess. 15 (1844) ..... 12, 13,

23

Cong. Globe, 42d Cong., 2d Sess. 676 (1872) ............11

Connecticut Ratification Debates (Jan. 11, 1788), in 3

THE DOCUMENTARY HISTORY OF THE RATIFICATION

OF THE CONSTITUTION, Delaware, New Jersey,

Georgia, Connecticut (Merrill Jensen ed., 1978) ...8,

18

THE FEDERALIST NO. 59 (Alexander Hamilton)

(Clinton Rossiter ed., 1961). ....................................8

THE FEDERALIST NO. 61 (Alexander Hamilton)

(Clinton Rossiter ed., 1961) .....................................8

Johnson, Samuel, A Dictionary of the English

Language (1755). ...................................................11

North Carolina Ratification Debates (July 26, 1788),

in 30 THE DOCUMENTARY HISTORY OF THE

RATIFICATION OF THE CONSTITUTION, North

Carolina No. 1 (John P. Kaminski et al. eds., 2019)

.............................................................. 2, 6, 7, 18, 22

Pennsylvania Mercury, Apr. 15, 1788, reprinted in 17

THE DOCUMENTARY HISTORY OF THE RATIFICATION

vii

OF THE CONSTITUTION, Commentaries on the

Constitution No. 5 (John P. Kaminski et al. eds.,

1995) .........................................................................6

Pennsylvania Ratification Debates (Dec. 11, 1787), in

2 THE DOCUMENTARY HISTORY OF THE

RATIFICATION OF THE CONSTITUTION, Pennsylvania

(Merrill Jensen ed., 1976).................... 2, 5, 6, 18, 23

Press Release, Pub. Int. Legal Found., PILF Files

Legal Brief to Restore the Day in Election Day

(Jan. 24, 2022),

https://publicinterestlegal.org/press/pilf-files-legalbrief-to-restore-the-day-in-election-day/ ...............24

The Records of the Federal Convention of 1787 (Max

Farrand ed., 1911). ...................................... 5, 20, 22

Story, Joseph, Commentaries on the Constitution of

the United States § 1469 (1833). .............................9

Virginia Ratification Debates (June 17, 1788), in 10

THE DOCUMENTARY HISTORY OF THE RATIFICATION

OF THE CONSTITUTION, Virginia No. 3 (John P.

Kaminski et al. eds., 1993) ...................... 2, 6, 20, 22

Rules

Sup. Ct. Rule 37.6........................................................1

Constitutional Provisions

U.S. Const. art. I, § 4 ................................... 2, 4, 16, 25

U.S. Const. art. II, § 1, cl. 4................... 2, 4, 10, 11, 16

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INTEREST OF AMICUS CURIAE1

The Center for Constitutional Jurisprudence is the

public interest law arm of the Claremont Institute, a

non-profit educational foundation dedicated to restoring the principles of the American Founding to their

rightful and preeminent authority in our national life.

The Center’s mission is to uphold the Constitution as

the Framers intended it and as it was understood by

the people who ratified it. The Center achieves this

mission through strategic litigation, including the filing of amicus curiae briefs in this Court to provide the

historical and constitutional context necessary for the

proper resolution of significant constitutional questions.

The Center has represented parties or filed amicus

briefs in numerous cases of constitutional import before this Court, including cases involving the separation of powers, the structure of the federal government, and the integrity of the electoral process. See,

e.g., Moore v. Harper, 600 U.S. 1 (2023); Brnovich v.

Democratic National Committee, 594 U.S. 647 (2021);

Evenwel v. Abbott, 578 U.S. 54 (2016); Bush v. Gore,

531 U.S. 98 (2000).

The Center has a particular interest in this case

because it concerns the structural safeguards the Constitution and Congress established to protect the integrity of federal elections. The Framers understood

that the timing of elections is not merely a matter of

1 In accordance with Rule 37.6, counsel affirms that no counsel

for any party authored this brief in whole or in part and that no

person or entity other than amicus curiae made a monetary contribution to fund the preparation and submission of this brief.

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administrative convenience but a substantive check

against faction, intrigue, and the distortion of the popular will. The Center writes to assist the Court in understanding the original public meaning of the relevant constitutional provisions and the historical purpose of the federal Election Day statutes, ensuring

that state regulations do not override the structural

commands of federal law.

SUMMARY OF ARGUMENT

The Constitution does not leave the timing of federal elections to chance or local convenience; it treats

timing as a structural safeguard. The Framers expressly authorized Congress to set the “Times” of congressional elections and mandated a uniform “Day”

for the appointment of presidential electors. See U.S.

Const. art. I, § 4, cl. 1; id. art. II, § 1, cl. 4. This grant

of authority was born of a specific fear: that staggered

or extended elections would invite “cabal,” “intrigue,”

and “undue influence.” James Wilson, Remarks in the

Pennsylvania Ratifying Convention (Dec. 11, 1787), in

2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF

THE CONSTITUTION 567 (Merrill Jensen ed., 1976)

(hereinafter “DOCUMENTARY HISTORY”). Leading

Framers like James Iredell and Edmund Randolph

warned that if the act of choosing is stretched over

time, or if results in one area were known before voting concluded in another, the election would become

vulnerable to strategic manipulation and corruption.

James Iredell, Remarks in the North Carolina Ratifying Convention (July 26, 1788), in 30 DOCUMENTARY

HISTORY 321 (John P. Kaminski et al. eds., 2019); Edmund Randolph, Remarks in the Virginia Ratifying

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Convention (June 17, 1788), in 10 DOCUMENTARY HISTORY 1367 (John P. Kaminski et al. eds., 1993).

Congress exercised this constitutional authority to

erect a statutory firewall against those very dangers.

By enacting the federal Election Day statutes, Congress established a single, uniform day to “consummate” the election. See 2 U.S.C. § 7; 3 U.S.C. § 1. These

statutes are the legislative implementation of the

Constitution’s structural design. In 1845 and 1872,

Congress established a uniform day specifically to

prevent practices like “political colonizing”—the

movement of voters or manipulation of results made

possible by temporal disparities. See Act of Jan. 23,

1845, ch. 1, 5 Stat. 721. The federal statutes thus function as an anti-corruption device, ensuring the national choice is made simultaneously, thereby foreclosing the opportunities for fraud that arise when the

election is transformed from a discrete event into a

prolonged process.

This Court confirmed that statutory command in

Foster v. Love, holding that the federal “day for the

election” is the day the election is “consummated”—

the point at which the officials and voters make the

final selection. 522 U.S. 67, 71–73 (1997). A State may

not shift that consummation earlier, nor may it shift

it later. Id. Yet, by defining the “election” to include

the receipt of ballots after Election Day, Mississippi

has decoupled the legal act of choosing from the day

Congress prescribed. See Republican Nat’l Comm. v.

Wetzel, 120 F.4th 200 (5th Cir. 2024); Miss. Code Ann.

§ 23-15-637(1)(a).

Mississippi’s rule ostensibly concerns the “manner” of absentee voting but, in practice, it overrides

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the federal “Time.” By accepting ballots into official

custody after the federal deadline, the State effectively extends the election window, reviving the precise evils that the Founders feared and that Congress

acted to prevent. A ballot is not “cast” in the eyes of

the law until it is received by the public authority capable of counting it; to hold otherwise is to allow a

State to dismantle the temporal boundaries Congress

established to preserve the integrity of the national

vote. See 3 U.S.C. § 1.

ARGUMENT

I.

The Constitution’s Design Makes a Single

Day for Federal Elections a Structural Safeguard Against Cabal, Undue Influence, and

Strategic Manipulation.

The question in this case is statutory, but the statute cannot be understood without the constitutional

design on which it is based. The Founders did not

treat election timing as a mere administrative detail.

They treated time as an anti-corruption device. The

Constitution therefore contains two related structural

provisions: (1) the Elections Clause authorizing Congress to set and override the “Times” of congressional

elections, U.S. Const. art. I, § 4, cl. 1; and (2) the Electors Clause authorizing Congress to determine both

the “Time of chusing the Electors” and the “Day” on

which the electors “shall give their Votes,” which “Day

shall be the same throughout the United States,” U.S.

Const. art. II, § 1, cl. 4.

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A. The Founding-Era Understanding Was

That Extending Elections Over Time Creates Opportunities for Intrigue and Influence That a Republic Must Avoid.

The Framers understood that staggered or prolonged elections invite manipulation. A multi-day

election is not simply “more time to vote;” it constitutes a fundamental alteration of the legal nature of

the event. It transforms the election from a discrete,

simultaneous act of sovereign choice into an extended

process – one in which the electorate remains fluid

and exposed to the dangers the Constitution was designed to foreclose: organized pressure, the formation

of cabals, and strategic manipulation driven by the

early knowledge of results.

This is why the Constitution explicitly insists upon

a single day for the electors’ vote. At the Philadelphia

Convention, Gouverneur Morris explained the purpose in plain terms: if electors “vote at the same time,”

“cabal” can be avoided, and it becomes “impossible

also to corrupt them.” See 2 The Records of the Federal

Convention of 1787, at 399 (Max Farrand ed., 1911)

(statement of Gouverneur Morris). Far from being one

of the Constitution’s compromises, the record reveals

no contradiction of Morris’ premise, nor any defense of

staggered voting.

Indeed, ratification-era commentary repeatedly

emphasized the same theme. James Wilson, in Pennsylvania, gave the most vivid warning of what happens when elections are extended or deferred. He contrasted the Constitution’s design with the “tumultuous” elections of the Polish-Lithuanian Commonwealth, which he famously described as “begun in

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noise and ending in bloodshed.” Wilson, Remarks in

the Pennsylvania Convention, 2 DOCUMENTARY HISTORY 567. Wilson defended the Electoral College system in part because “it will not be easy to corrupt the

Electors,” and because the system gives “little time or

opportunity for tumult or intrigue.” Id. Wilson underscored that the Constitution “with the same view” directs that “the day on which the Electors shall give

their votes shall be the same throughout the United

States.” Id.

John Dickinson – writing as “Fabius” – likewise

treated Congress’s authority to fix the timing of the

choice as a safeguard against influence and coordination. Dickinson explained that, “to guard against undue influence,” Congress may determine “the day” for

the electors’ vote, “which day shall be the same

throughout the United States.” Fabius II, Pennsylvania Mercury, Apr. 15, 1788, reprinted in 17 DOCUMENTARY HISTORY 124 (John P. Kaminski et al. eds., 1995).

In Virginia, Edmund Randolph likewise defended

the system precisely because it prevents foreign intrigue. Randolph argued that the Constitution’s mode

of election “renders it unnecessary and impossible for

foreign force or aid to interpose,” and asked: “how can

foreign influence or intrigues enter?” Randolph, Remarks in the Virginia Convention, in 10 DOCUMENTARY HISTORY 1367. He emphasized that “there can be

no combination between the Electors, as they elect

him on the same day in every State,” and asked rhetorically: “When this is the case, how can foreign influence or intrigues enter?” Id.

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Notably, even Anti-Federalist objections confirm

that Congress’s control over election timing was understood as a real structural power – not an administrative detail. Again, in North Carolina, Mr. J. Taylor

warned that if Congress could fix the time of choosing

electors, it could “by their army… compel the electors

to vote as they please.” J. Taylor, Remarks in the

North Carolina Ratifying Convention (July 26, 1788),

in 30 DOCUMENTARY HISTORY 321 (John P. Kaminski

et al. eds., 2019). Richard Spaight’s response – that a

uniform day would “prevent a combination between

the Electors” – shows that both critics and defenders

understood uniform timing to foreclose manipulation.

Id. (statement of Richard Spaight).

James Iredell made the purpose even more explicit. He called the clause “a most excellent” safeguard because “Nothing is more necessary than to

prevent every danger of influence.” See id. at 320-21.

(statement of James Iredell). If the time were different

in different states, Iredell warned, electors chosen in

one state “might have gone from state to state and

conferred with the other Electors,” and “the election

might have been thus carried on under undue influence.” Id. The uniform day, by contrast, means “the

Electors must meet in the different states on the same

day, and cannot confer together,” so that “There can

be therefore no kind of combination.” Id. Iredell further reasoned that this structure makes it more likely

that the chosen candidate will be one who “possesses

in a high degree the confidence and respect of his

country.” Id.

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These statements share a unified premise: the integrity of the election depends on closing the decisive

act of choice on the day set by law.

B. The Same Logic Supports Congress’s

Power to Require a Single Day for the

Popular Election That Appoints Electors

and Elects Representatives.

It would be a mistake to treat the Electors Clause

as uniquely concerned with simultaneity while treating congressional elections as indifferent to timing.

The Founders’ reasoning was structural and general.

In fact, the Elections Clause was adopted precisely because the national government required a reliable

mechanism for choosing federal officers without dependence on state discretion that could be abused or

withheld. See THE FEDERALIST NO. 59, at 360–64 (Alexander Hamilton) (Clinton Rossiter ed., 1961); THE

FEDERALIST NO. 61, at 372–76 (Alexander Hamilton).

That premise necessarily includes the power to fix a

uniform time that ensures elections happen and happen in a way that is resistant to manipulation.

Founding-era writers discussing Congress’s authority over election timing treated uniformity as a

feature of republican government. “Cassius,” writing

during the ratification debates, pointed to Congress’s

power to determine the time for choosing electors and

to require a uniform day as proof of a “liberal and free

government,” because “No one state will in the least

be influenced in their choice by that of another.” Cassius VI, Massachusetts Gazette, Dec. 18, 1787, reprinted in 5 DOCUMENTARY HISTORY 482–83 (John P.

Kaminski et al. eds., 1998).

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Samuel Holden Parsons likewise explained that,

while states would control qualifications, Congress

properly could determine the time of elections because

the states had adopted “different practices,” and because it is “expedient, at least, they should be in one

day throughout the Union.” Samuel Holden Parsons,

Remarks in the Connecticut Ratifying Convention

(Jan. 11, 1788), in 3 DOCUMENTARY HISTORY 571 (Merrill Jensen ed., 1978). Parsons added that frequent

changes in the “manner of elections” may be necessary

“to prevent corruption,” suggesting again that timing

and mechanics are not neutral – they are tools for preserving republican integrity. Id.

Joseph Story – writing as an early constitutional

commentator in the generation that inherited the

Founders’ settlement – captured the same understanding: Congress’s power to fix a uniform day exists

“calculated to repress” the risk that electors (and by

analogy elections) would be influenced by communications and combinations across states. 3 Joseph Story,

Commentaries on the Constitution of the United States

§ 1469 (1833).

The core point is straightforward: a “single day” is

a constitutional means of preventing undue influence,

not a mere calendar selection.

C. Congress’s Current Presidential-Election

Framework Defines “Election Day” and

Confirms That Electors Must Be Appointed on That Day.

Congress has now codified, in the presidentialelection chapter itself, both (i) a definition of “election

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day” and (ii) the command that presidential electors

be appointed on that day. See 3 U.S.C. §§ 1, 21.

First, Congress defines “election day” for presidential electors as the Tuesday next after the first Monday in November every fourth year – while providing

only a narrow carveout for extraordinary, catastrophic force majeure events where state law enacted

prior to election day modifies the period of voting. 3

U.S.C. § 21(1). That definition confirms that “election

day” is ordinarily a fixed national day, and that any

departure must fit within a tightly described, congressionally recognized exception.

Second, Congress provides that presidential electors “shall be appointed, in each State, on election day,

in accordance with the laws of the State enacted prior

to election day.” 3 U.S.C. § 1 (emphasis added). The

statute thus requires appointment on election day

while locking the governing rules in place as of that

day – reinforcing the principle that a State may not

keep the decisive act of appointment open after the

federally prescribed day has passed.

This structure accords with the original 1845 enactment, which established the uniform day and permitted later appointment only in the rare instance of

a “failure to make a choice” on that day. See § II.C,

infra. Whether framed in the modern statutory definition of “election day,” or in Congress’s historic insistence that deviation required a narrowly specified contingency, the point is the same: the federal presidential election is to be completed on the day Congress

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has prescribed, absent an explicit and limited congressional exception.2

II.

Congress Implemented the Constitution’s

“Single Day” Safeguard Through the Election Day Statutes, Which Require the Election – The Act of Choosing – to Be Completed on the Prescribed Day.

The case turns on federal statutes. But those statutes represent Congress’s decision to exercise its constitutional authority to address the very dangers the

Framers foresaw. When Congress finally established

a uniform day, it did so to activate the Constitution’s

structural safeguard against “cabal” and “intrigue,”

ensuring that federal elections do not become staggered, extended, or manipulable. See 2 U.S.C. § 7; 3

U.S.C. § 1.

A. The Text: Congress Set a “Day” for the

Election, Not a Multi-Day Window.

Congress fixed a uniform day for appointing presidential electors. See 3 U.S.C. § 1. The statutory choice

of the singular “day” mirrors the Constitution’s singular “Day” in Article II. See U.S. Const. art. II, § 1, cl.

4. A “day” is not an indefinite interval. It is a calendar

2 The State Legislatures may also have a narrow power to act,

pursuant to their plenary constitutional power to direct the manner of choosing presidential electors, U.S. Const. Art. II, § 1, cl.

2, if election officials conducted the election contrary to the manner directed by the Legislature. That issue is not presented by

this case.

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date on which a specified legal act occurs. It is precisely because a day is definite that it can function as

a safeguard against manipulation.

Congress likewise fixed a uniform day for electing

Representatives. See 2 U.S.C. § 7. This choice was deliberate. When Congress enacted the House Election

Day statute in 1872, it rejected an amendment that

would have authorized States to hold the election on

a later date – proposing that if the election were not

held on the federal Tuesday, it “may be held on any

subsequent day, to be fixed by the laws of the State.”

Cong. Globe, 42d Cong., 2d Sess. 676 (1872). That rejection confirms that Congress was imposing a meaningful national deadline for when the federal election

must occur.

Founding-era usage aligns with this ordinary

meaning. Samuel Johnson defined “election” as the

act of choosing. See Samuel Johnson, A Dictionary of

the English Language (1755) (defining “election”). A

choice must occur at a point in time; it is not an ongoing state of affairs. An election held “on” a day is an

election whose legally operative act of choosing occurs

on that day.

Of course, tabulation and canvassing can continue

after Election Day. But continuing to count ballots already cast is not the same thing as continuing to receive new votes. A state may take time to determine

what the already-cast ballots show. But it may not redefine “the election” to include ballots that were not in

election officials’ possession on Election Day. See Foster v. Love, 522 U.S. 67, 71–73 (1997).

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B. Congress’s 1845 Presidential-Elector Statute Was Enacted to Prevent Fraud and

Strategic Timing – Concerns That Apply

With Full Force to Post-Election Receipt

Rules.

In 1845, Congress enacted the statute that remains (as amended) the basis for presidential Election

Day. Congress required that presidential electors be

appointed on “the Tuesday next after the first Monday

in November.” See Act of Jan. 23, 1845, ch. 1, 5 Stat.

721 (codified as amended at 3 U.S.C. § 1).

The 1844–1845 debates make the point explicit in

the very terms at issue here – receipt. Representative

Chilton described the bill as establishing “that no

votes cast after that day should be received.” Cong.

Globe, 28th Cong., 2d Sess. 15 (1844). In the statutory

context of 1845, when voting was an in-person act and

casting and receipt were simultaneous, Chilton’s insistence that no votes be received after Election Day

confirms that the statute was meant to close the window of the election – and the official acceptance of ballots – on the single day Congress prescribed.

The same debates identified a concrete abuse that

flowed directly from staggered or extended elections:

so-called “political colonizing.” Representative

Rathbun explained that its object was “to guard

against frauds in the elections of President and Vice

President, by declaring that they shall all be held on

the same day.” Cong. Globe, 28th Cong., 2d Sess. 29

(1844). Other Members warned that, absent a uniform

day, partisan actors would move voters into doubtful

States after learning results elsewhere, manipulating

outcomes by exploiting temporal disparities. Id. at 28.

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The uniform Election Day was thus designed to foreclose not merely abstract corruption, but a specific,

well-understood practice made possible only when

elections were not completed contemporaneously.

The legislative history reflects Congress’s recognition that the timing of elections is intimately connected to election integrity. During debate, Members

described the bill as “a simple naked proposition to fix

a uniform day” and emphasized that it preserved state

authority over “the manner of elections,” “canvassing

the votes,” and “making the returns,” while still establishing the national rule that the election is held on a

single day. See Cong. Globe, 28th Cong., 2d Sess. 28

(1844).

Members also explained that a uniform day prevents “frauds upon the ballot-box.” Id. One Member

reasoned that the “same reasons” that make it “necessary to elect presidential electors on the same day” apply “with equal force” to congressional elections because “the inducement for frauds upon the ballot-box

is about equal in both cases,” and fixing a single day

would “prevent” such frauds. Id. at 29.

C. Congress’s Original Election-Day Statute

Included Only a Narrow Contingency Proviso – Confirming That Election Day Is the

Day of Choice.

Congress’s original presidential Election Day statute did not treat Election Day as the beginning of an

open-ended window. It treated it as the day on which

the choice is made – so much so that Congress included a narrow contingency proviso for the excep-

15

tional circumstance in which the State held the election but “shall fail to make a choice” on the federal

day. Act of Jan. 23, 1845, ch. 1, 5 Stat. 721 (codified at

3 U.S.C. § 2 until deleted in 2022).

That statutory structure is incompatible with the

theory that the federal election is still “held” on Election Day even if a State continues to accept decisive

votes into official custody after that day. A State that

counts ballots received after Election Day necessarily

treats the “choice” as contingent on later arrivals rather than made on the day Congress fixed.

This matters here because the question is not

whether a State may canvass or tabulate after Election Day. It is whether the State may accept and count

votes not yet in officials’ custody once the federally

fixed day has passed. Congress’s insistence on a single

day – together with the narrow contingency proviso in

the 1845 Act – underscores that Election Day is the

day of choice, not merely the first day of a multi-day

voting period.

III. This Court’s Precedent Confirms That the

Election Day Statutes Fix the Day the Election Is “Consummated,” and States May Not

Shift That Consummation Earlier or Later.

The Court’s modern Election Day precedent begins

with Foster v. Love. The principle it announces is

broader than the specific early-election scheme at issue there. See Foster, 522 U.S. at 71–73.

A. Foster Holds That the Federal “Day for the

Election” Is the Day on Which the Election

Is Held – Not Merely a Deadline for Counting.

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In Foster, Louisiana held an “open primary” before

the federal Election Day. If a candidate won a majority, the candidate was elected and no further election

occurred on the federal day. The Court held that the

federal Election Day statute preempted Louisiana’s

scheme because the federal statute requires the election to be held on the uniform day. Id.

The Court explained that the statute establishes

“the day for the election” – the specific time at which

the “combined actions” of voters and officials “make a

final selection.” Id. at 71. While Foster invalidated a

scheme that concluded the election too early, it did so

by enforcing the federal “day” as the legally decisive

time. The statute thus prohibits decoupling the election from the federally prescribed day – whether by

moving the decisive acts earlier or by extending them

later.

That reasoning applies symmetrically. The statute

prohibits shifting consummation earlier than Election

Day. It also prohibits shifting consummation later

than Election Day by leaving the decisive inputs of the

election open after the day has passed. Id.

B. Elections-Clause Preemption Is Real

Preemption: When Congress Sets the

Time, Conflicting State Rules Must Yield.

The Constitution grants Congress the final word

on the timing of federal elections. Regarding presidential electors, the Constitution empowers Congress to

determine the “Time of chusing the Electors” and the

“Day” on which they vote. U.S. Const. art. II, § 1, cl. 4.

Regarding congressional elections, Article I allows

States to prescribe “Times, Places and Manner,” but

17

empowers Congress to “make or alter” such regulations at any time. Id. art. I, § 4, cl. 1. In either context,

once Congress fixes the “Time,” any inconsistent state

rule must yield; the subordinate cannot override the

superior. Ex parte Siebold, 100 U.S. 371, 383–84

(1879). This Court has stated the same point in direct

preemption terms. In Arizona v. Inter Tribal Council

of Ariz., Inc., the Court explained that the Elections

Clause empowers Congress “to pre-empt state regulations” governing the “Times, Places and Manner” of

federal elections. 570 U.S. 1, 8–9 (2013). So when Congress sets the federal “Time” by fixing a single Election Day, state rules that effectively extend that Time

beyond the federally prescribed day must yield.

A ballot-receipt deadline is not a mere administrative “manner” detail when it extends the period in

which votes may be accepted; it changes the temporal

boundary of the election itself. Foster v. Love, 522 U.S.

67, 71–72 (1997). Mississippi’s receipt rule therefore

inverts the constitutional order by using “Manner”

(absentee administration) to displace “Time” (the federal Election Day Congress prescribed). U.S. Const.

art. I, § 4, cl. 1; 2 U.S.C. § 7; 3 U.S.C. § 1.

C. This Court’s Emergency-Election Cases

Reflect the Same Baseline Principle:

Courts and States Should Not Extend

Elections Beyond the Day Set by Law.

Even outside the specific context of statutory

preemption, this Court has repeatedly treated Election Day as a meaningful legal line. During the 2020

election, for example, the Court stayed lower-court orders that altered ballot deadlines close to the election,

emphasizing the importance of maintaining the rules

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established by legislatures and the risks of judicially

altering election procedures. See Republican Nat’l

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

25 (2020) (per curiam); see also, Purcell v. Gonzalez,

549 U.S. 1, 4–5 (2006) (per curiam).

Those cases concern equitable doctrines, but they

reflect a consistent judicial recognition that elections

are structured events with legally defined endpoints.

The statutory endpoint Congress set for federal elections should be treated at least as seriously as the

Court treats state deadlines in equitable contexts. See

Foster, 522 U.S. at 71–73.

IV. Mississippi’s Post-Election-Day Receipt

Rule Conflicts With Federal Law Because a

Ballot Is Not “Cast” in the Election Until It

Is Delivered Into the Custody of Election

Officials.

Mississippi’s rule requires officials to count certain

mail ballots received after Election Day. See Miss.

Code Ann. § 23-15-637(1)(a). The State seeks to reconcile that rule with federal Election Day by arguing, in

substance, that the ballot is “cast” when the voter

mails it (or when it is postmarked), so that the election

still occurs “on” Election Day even if ballots arrive

later. That theory is incompatible with the constitutional and historical understanding of elections.

This Court’s own description of what an “election”

entails confirms that official custody is required. Foster explained that the federal Election Day statutes

govern “the combined actions of voters and officials

meant to make a final selection of an officeholder.” 522

U.S. at 71. A mail ballot that remains outside election

19

officials’ custody has not yet entered that combined,

legally supervised electoral act – and a State cannot

extend the federal “day for the election” by treating

such ballots as valid votes when they arrive after the

day Congress prescribed.

A. The Original Understanding of an “Election” Presupposes a Public, Legally Supervised Act That Closes on the Day Prescribed.

At the Founding, elections were public acts administered by authorized officials at prescribed places and

times. The key feature was not merely the voter’s private intention. It was the public, legally cognizable act

by which that intention became part of the community’s official choice. Parsons, Remarks in the Connecticut Convention, 3 DOCUMENTARY HISTORY at 571

(recognizing Congress’s authority to adjust election

“manner” to prevent corruption and ensure electors

can convene).

The Founders’ emphasis on preventing “tumult,”

“intrigue,” and “undue influence” presupposed that

the election is a bounded public event. Wilson, Remarks in the Pennsylvania Convention, 2 DOCUMENTARY HISTORY at 567; Iredell, Remarks in the North

Carolina Convention, 30 DOCUMENTARY HISTORY at

321.

A private act performed in isolation, with no public

custody or legally supervised receipt, is not an “election” act in the sense the Constitution and early statutes assumed. A ballot becomes part of the election

when it enters the election process – i.e., when it is

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delivered to officials tasked with receiving and counting it in accordance with law. See Foster, 522 U.S. at

71–73.

Mississippi (and the dissents below) may invoke

Civil War–era soldier-voting arrangements to argue

that ballots historically could be transported and

counted after Election Day. But that history does not

establish a general state power to extend the federal

election beyond the day prescribed by Congress. The

cited soldier-voting practices typically involved voting

on the legally designated election day under authorized supervision, followed by later transportation and

canvassing once ballots and returns could physically

reach home precincts. That post-election canvass is

categorically different from a modern rule that keeps

the decisive electorate open after Election Day by accepting additional votes into official custody after the

federal deadline has passed.

B. Treating a Postmark as the Moment the

Vote Is Cast Detaches the Election From

Public Administration and Undermines

the Uniform-Day Safeguard.

A postmark is not an election act performed by an

election official. It is an artifact of the postal system.

It may be missing, illegible, delayed, or subject to dispute. If the operative act of voting is shifted from delivery to election officials to a postal mark, the election’s boundaries cease to be defined by election law

and become dependent on a separate system. See

Miss. Code Ann. § 23-15-637(1)(a).

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Treating a postmark as the act of voting defeats

the purpose for which Congress exercised its constitutional power: simultaneity. If the “election” is defined

by a private act (mailing) rather than a public one (receipt), the electorate remains fluid and susceptible to

the very strategic manipulation – knowing results in

one place before voting concludes in another – that the

uniform “Day” was created to foreclose. The whole

point of requiring a single day was to cabin the election in a predictable and publicly administered period,

not to create a rule under which the electorate’s decisive inputs trickle in after the day set by Congress.

See 2 The Records of the Federal Convention of 1787,

at 399 (Max Farrand ed., 1911) (statement of Gouverneur Morris); Edmund Randolph, Remarks in the Virginia Ratifying Convention (June 17, 1788), in 10

DOCUMENTARY HISTORY 1367 (John P. Kaminski et al.

eds., 1993).

Mississippi may attempt to reframe the issue as

one of “receipt” rather than “casting,” arguing that a

ballot is “cast” when mailed. But the federal statutes

regulate when the election is “held” and (for presidential electors) when electors are “appointed” – concepts

that presuppose a publicly administered, legally cognizable act. For mail ballots, the voter’s private act of

mailing is not itself the public act that election law

can finally tally; that occurs when the ballot is delivered into election officials’ custody pursuant to law.

Treating a postmark as the operative “cast” moment

would make the federal election’s endpoint depend on

postal artifacts and disputes external to election administration – precisely the temporal indeterminacy

the uniform-day rule was designed to avoid.

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C. Mississippi’s Rule Conflicts With 3 U.S.C.

§ 1 Because It Means Electors Are Not

Truly “Appointed” on the Day Congress

Prescribed.

Congress’s presidential Election Day statute does

not speak in the abstract about “voting.” It speaks

about the appointment of electors. Electors “shall be

appointed” on the specified Tuesday. See 3 U.S.C. § 1.

A State appoints electors through its election process. If ballots received after Election Day must be

counted as part of that process, then the appointment

is not made solely on the day Congress prescribed. Rather, the decisive electorate is defined across multiple

days. See id.; Miss. Code Ann. § 23-15-637(1)(a).

As detailed above, the 1845 statute recognized only

a narrow contingency for proceeding later—when a

State held the election but “fail[ed] to make a choice”

on the federal day. See § II.C, supra. That conditional

structure is incompatible with a regime that routinely

keeps the choice open after Election Day by accepting

additional ballots into official custody afterward. A

State that counts ballots received after Election Day

necessarily treats the choice as contingent on events

after the federal deadline.

The better reading, consistent with the Constitution’s structural safeguards and Congress’s statutory

framework, is that a State may take time after Election Day to canvass and count ballots that were cast

(i.e., received by election officials) by Election Day, but

it may not treat ballots not received by Election Day

as legally valid votes in the federal election. See Foster, 522 U.S. at 71–73.

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V.

Extending Receipt and Counting Beyond

Election Day Revives the Evils the Founders and Early Congresses Sought to Avoid,

and It Undermines the National Character

of Federal Elections.

This Court need not rely on policy alone. The controlling point is statutory and constitutional structure. But the Founders’ reasons are instructive precisely because those reasons remain relevant. Extending the election beyond Election Day revives the very

dangers the Founders cited.

A. The Founders’ Concerns About “Cabal,”

“Combination,” and “Foreign Influence”

Are Heightened When the Election Becomes Temporally Extended.

Morris’s point about “cabal” assumed that simultaneity reduces the ability to coordinate corruption. See

2 The Records of the Federal Convention of 1787, supra, at 399 (statement of Gouverneur Morris). Iredell’s concern about electors traveling and conferring

assumed that time enables coordination and undue

influence. Iredell, Remarks in the North Carolina

Convention, 30 DOCUMENTARY HISTORY 321. Randolph’s emphasis on excluding foreign intrigue assumed that a bounded event reduces external leverage. Randolph, Remarks in the Virginia Convention,

10 DOCUMENTARY HISTORY 1367.

Those structural concerns are not relics. Modern

communications and high-stakes national politics increase the incentives and the opportunities for coordinated pressure and strategic behavior. A rule that

keeps the decisive electorate open after the day set by

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Congress is a rule that increases the space for organized contestation and suspicion precisely when the

Nation needs finality. See Cong. Globe, 28th Cong., 2d

Sess. 28 (1844) (linking uniform day to prevention of

“frauds upon the ballot-box”).

B. Congress’s Uniform-Day Rule Serves National Unity and Public Legitimacy – Values Damaged When States Define Federal

Elections Over Multiple Days.

Federal elections are national events. Congress set

a uniform day precisely so that the Nation chooses its

federal officers together. A multi-day election fragments that national act. It also erodes public confidence by creating the appearance that elections are

not determinate events but extended processes subject to change after Election Day has passed. See 2

U.S.C. § 7; 3 U.S.C. § 1.

Even if one assumes good faith in election administration, the uniform-day safeguard functions in part

to prevent reasonable citizens from suspecting manipulation. The Founders recognized that republican government depends not only on actual integrity but on

structures that make integrity credible. See Wilson,

Remarks in the Pennsylvania Convention, 2 DOCUMENTARY HISTORY at 567 (emphasizing avoidance of

“tumult or intrigue”).

Experience confirms what the Framers understood: finality and legitimacy require a real deadline.

Florida – after the 2000 debacle – now requires domestic vote-by-mail ballots to be received by the close

of polls on Election Day, eliminating the rolling uncertainty produced by post-Election-Day receipt rules.

25

Fla. Stat. § 101.67; Fla. Dep’t of State, Vote-by-Mail

(explaining receipt-by-Election-Day requirement).

That clear, enforceable endpoint is widely credited as

a substantial reason Florida regularly reports results

on election night rather than inviting days of suspicion and “intrigue” while ballots remain in transit.

Press Release, Pub. Int. Legal Found., PILF Files Legal Brief to Restore the Day in Election Day (Jan. 24,

2022), https://publicinterestlegal.org/press/pilf-fileslegal-brief-to-restore-the-day-in-election-day/

(discussing Florida’s turnaround); Bush v. Gore, 531 U.S.

98 (2000).

C. Congress Has Power to Create Specific

Exceptions – and Has Done So in Limited

Contexts – Which Confirms the General

Rule That the Election Must Be Completed on Election Day.

When Congress wants to authorize any departure

from the fixed federal “election day,” it does so expressly. Congress has now defined “election day” for

presidential elections, and it recognizes a modified

“period of voting” only for extraordinary and catastrophic force majeure events – and only as provided

under state laws enacted prior to Election Day. 3

U.S.C. § 21(1).

Nothing in the Election Day statutes provides a

comparable authorization for States to extend ordinary domestic voting beyond Election Day by counting

ballots first received afterward. Absent an explicit

congressional carveout, States may not transform

Congress’s single-day command into a multi-day election. See Foster, 522 U.S. at 71–73.

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D. Congress’s Targeted Accommodations for

Military and Overseas Voters Confirm

That States May Not Unilaterally Extend

the Federal Election Day

UOCAVA does not dissolve the federal “day” Congress fixed; it confirms that only Congress may create

narrow departures from it for compelling federal reasons.

Congress enacted UOCAVA to protect a discrete

class of voters – absent uniformed-services voters and

overseas voters – whose ballots must traverse extraordinary logistical obstacles. 52 U.S.C. § 20302(a)(1).

Congress therefore requires States to transmit requested absentee ballots to such voters well in advance of Election Day (typically 45 days), and to provide specialized mechanisms for electronic transmission and backup voting where needed. 52 U.S.C. §§

20302(a)(6)–(9), 20303. The Department of Justice

likewise describes UOCAVA as ensuring timely transmission and usable procedures for military and overseas voters, not as a general authorization for States

to redefine the duration of federal elections for domestic voters. UOCAVA is thus an exercise of Congress’s

Elections Clause authority to “make or alter” rules for

federal elections. U.S. Const. art. I, § 4, cl. 1; Arizona

v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 8–9

(2013). A congressionally crafted accommodation for

federal military and overseas voters cannot be transmogrified into a state-law license to extend the election for everyone else. The existence of tailored federal

accommodations underscores the premise of this case:

when the “day” Congress set must yield, Congress –

not the States – supplies the yielding rule.

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Anticipating the contrary argument: UOCAVA’s

references to state receipt deadlines for overseas and

military ballots do not imply a general state power to

extend federal Election Day for domestic voting.

Those provisions reflect Congress’s own targeted accommodation – an exercise of Congress’s Elections

Clause authority to create narrow, federally specified

departures for a discrete class facing exceptional logistical barriers. If Congress chooses to incorporate or

coordinate with state receipt rules for that limited

context, that confirms (rather than negates) the baseline rule: extensions of the federal election’s timing

are matters for Congress to authorize, not States to

assume unilaterally.

CONCLUSION

The Founders treated the timing of federal elections as a structural safeguard against corruption and

undue influence. Congress implemented that safeguard by establishing a single, uniform Election Day.

A state rule requiring the counting of ballots received

after Election Day transforms the federal “day for the

election” into the first day of a multi-day election, contradicting the Constitution’s design and Congress’s

enacted command.

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February 16, 2026

Respectfully submitted,

JOHN C. EASTMAN

Counsel of Record

ALEXANDER HABERBUSH

Constitutional Counsel Group

444 W Ocean Blvd, Ste. 1403

Long Beach, CA 90802

(562) 435-9062

jeastman@ccg1776.com

Counsel for Amicus Curiae The Claremont Institute’s

Center for Constitutional Jurisprudence