Divided Supreme Court Narrowly Allows Grace Period for Mail Ballots

By a vote of five to four, the Supreme Court ruled on Monday that ballots postmarked by Election Day but received days later can still be counted.

Justice Amy Coney Barrett, writing for the majority and joined by Chief Justice John Roberts, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, drew a distinction between what might be politically practical and what they believe legislatures may and have previously agreed on.

“The electorate’s choice is made when voting is complete, not when ballots are received,” wrote Justice Barrett. “Election-day statutes say nothing about ballot receipt, and we cannot add to the words Congress chose.”

The closely divided High Court decision came in response to Mississippi’s House Bill 1521, a so-called mail-ballot grace period law. It was passed by the Republican legislature during the COVID pandemic in 2020. The measure had amended absentee ballot rules and added a provision allowing for transit time through the mail.

But in October 2024, the Fifth Circuit ruled that the grace period conflicted with federal law requiring an “election day” – not an election season – when ballots can continue to be counted. In their decision, the Fifth Circuit held that exceptions to that designation (such as military and overseas ballots) must be directed by the United States Congress.

In their dissent, Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh all agreed.

“If ballots received after election day are added to the set of ballots that dictate the election’s outcome, the electorate’s choice does not occur on election day,” Justice Alito wrote. “The acceptance of these late-arriving ballots effectively postpones the date on which the electorate’s choice is made.”

Justice Alito added:

Election day is a specified date, not a span of multiple days. The election-day statutes require that federal elections occur on that date.

As it is, thirteen other states, along with the District of Columbia, also allow so-called grace periods when it comes to late-arriving ballots. At three days, Georgia, North Carolina, and Virginia allow the fewest. At 21 days, Washington state has the longest – and doesn’t even require a postmark by Election Day if the sender can somehow demonstrate they mailed it in time.

During oral arguments, opponents of Mississippi’s “grace” law cited the practical consequences of drawn-out ballot counting, especially charges of fraud and ballot box stuffing.

Writing for the majority, Justice Barrett didn’t dismiss those concerns but suggested they were outside the Supreme Court’s scope of consideration.

“Plaintiffs assert that requiring ballots to be received by election day protects election integrity and increases voter confidence in election results,” she wrote, continuing:

As we have said time and again, however, policy arguments are properly directed to legislatures, not courts. The question today is not whether requiring ballots to be received by election day is a good or bad idea; the question is whether the idea has made its way into the United States Code.

Yet, Justices Alito, Thomas, Gorsuch and Kavanaugh heard the same arguments and came to a very different conclusion.

“Not only is today’s decision inconsistent with statutory text, legal context, historical practice, and precedent,” wrote Justice Alito. “It also threatens to produce lamentable consequences. The majority’s holding spawns a slurry of troubling election-law questions and risks further undermining Americans’ confidence in election integrity.”

Cutting right to the chase, Alito concluded:

Today’s decision leaves open opportunities for voter fraud that may further undermine Americans’ faith in the integrity of this country’s elections. Diverse sources have recognized that mail-in ballots increase the potential for fraud.

In light of Monday’s ruling, we can expect conservative state legislatures (Alabama, Arkansas, Georgia and Mississippi) that currently have grace periods for the receipt of mail ballots to begin debate on amending those laws.