By Andrew Chung and John Kruzel
WASHINGTON, March 23 (Reuters) – Conservative U.S. Supreme Court justices signaled skepticism on Monday toward a Mississippi law challenged by Republicans that allows a five-day grace period for mail-in ballots received after Election Day to be counted in a case that could lead to stricter voting rules around the country.
Republican President Donald Trump’s administration argued in favor of the challenge to Mississippi’s law, which permits mail-in ballots sent by certain voters to be counted if they were postmarked on or before Election Day but received up to five business days after a federal election.
Absentee voting by mail in Mississippi is limited to a few categories of voters including elderly people, the disabled and those living away from home.
The Supreme Court heard arguments in Mississippi’s appeal of a lower court’s ruling that deemed its mail-in ballot law illegal. The dispute centered on whether federal laws setting the dates for federal elections preempt laws in various states that allow ballots to be received after Election Day.
U.S. Solicitor General D. John Sauer, arguing on behalf of the Trump administration, called Mississippi’s law unduly “general and permissive.”
“Official receipt is at the definitional heart of ‘election,'” Sauer said, referring to the receipt of ballots.
The Supreme Court has a 6-3 conservative majority. Questions posed by some of the conservative justices appeared to express their concern over mail-in ballot practices beyond merely grace periods, including who can deliver a ballot, whether it must be postmarked and even whether such a ballot may be recalled by the voter who sent it.
Trump last year vowed to end the use of mail-in ballots nationwide before the midterm elections in November, when his party is seeking to maintain control of Congress. Such a move likely would disproportionately benefit Republicans given that Democratic voters traditionally have been more likely to use mail-in ballots.
Legislation now being considered by Congress would put new restrictions on mail-in ballots involving requirements for certain government-issued photo identification. Trump, however, has urged Senate Republicans to expand the proposal to include a sweeping ban on mail-in voting, with limited exceptions for military personnel and certain others.
About 30 states and the District of Columbia accept at least some ballots that are postmarked on or before Election Day but received afterward. Mississippi has said a ruling in favor of the challengers would doom these laws, including for military personnel voting by mail.
The Republican National Committee, the Mississippi Republican Party and other plaintiffs sued in 2024, seeking to invalidate Mississippi’s law.
‘STASH OF BALLOTS’
Trump has sought to cast doubt on the security of mail-in ballots, although evidence of voter fraud is rare. Trump has continued to make false claims of widespread voting fraud in the 2020 presidential election that he lost to Democrat Joe Biden.
Some of the conservative justices asked Scott Stewart, the lawyer arguing for Mississippi, to address concerns that permissive mail-in ballot practices could cause the appearance of voter fraud.
“Confidence in election outcomes can be seriously undermined if the apparent outcome of the election on the day after the polls close is radically flipped by the acceptance later of a big stash of ballots,” Justice Samuel Alito said.
Stewart said that the federal Election Day laws were meant to address double voting and that opponents of Mississippi’s law have not shown actual evidence of fraud from post-election ballot receipt deadlines.
Justice Brett Kavanaugh asked Stewart to address whether historical practice favors a stricter deadline. Kavanaugh said the Republican challengers made the point that until recent times the predominant approach was to require receipt of mail-in ballots by Election Day.
Some justices wondered how a ruling against allowing ballots to be received after Election Day would not also jeopardize the widespread practice of early voting prior to Election Day.
“How is it that you’re not taking issue with early voting?” liberal Justice Elena Kagan asked Paul Clement, the lawyer who argued on behalf of the Republican challengers.
If, as the challengers contend, both the casting and the receipt of the ballot must happen on Election Day, Kagan said, “When I early vote, I’m not doing that.”
Conservative Justice Amy Coney Barrett also challenged Clement on this point. Clement replied that early voting “doesn’t sort of vitiate the whole idea of an Election Day” the way receiving ballots after that day does.
The Republican-controlled Mississippi legislature in 2020 passed the law on a bipartisan basis amid health concerns during the first year of the COVID pandemic.
The New Orleans-based 5th U.S. Circuit Court of Appeals in 2024 found the law invalid. Though this ruling applied only in the three states where the regional federal appeals court has jurisdiction – Mississippi, Louisiana and Texas – it called into question the voting practices in the other states with similar policies.
The Supreme Court is expected to rule by the end of June.
(Reporting by Andrew Chung and John Kruzel; Additional reporting by Nolan McCaskill; Editing by Will Dunham)
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