Mother Jones illustration; Tim Mossholder/Unsplash; Matt Slocum/AP
In a surprise victory for voting rights, the Supreme Court on Monday upheld a Mississippi law allowing mail-in ballots to be counted up to five days after Election Day, as long as they had been postmarked by the day of the election.
The 5-4 decision by Justice Amy Coney Barrett, which was joined by Chief Justice John Roberts and the court’s three liberal justices, averts a major election disaster that would have injected chaos into the midterms. Fourteen states have mail-in ballot grace periods on the books, and 30 states accept ballots from overseas and military voters sent before or on Election Day but only received after. The New York Times found that during the 2024 election “at least 725,000 ballots were postmarked by Election Day and arrived within the legally accepted post-election window.” Changing mail-in ballot deadlines months before the general election could have disenfranchised hundreds of thousands of voters who could have been unaware of the stricter rules, or have their ballots thrown out because of postal delays, or because they live in remote, rural locations in states like Alaska.
Overruling the Fifth Circuit Court of Appeals, Barrett affirmed that such laws are constitutional. “In sum, the election-day statutes require the electorate’s choice to be made on election day,” she wrote. “That occurs so long as election day is the deadline for individuals to vote—as it is in Mississippi. But the election-day statutes do not set a deadline for ballot receipt, so they do not prevent Mississippi from counting ballots postmarked before election day yet received afterward.”
“But the election-day statutes do not set a deadline for ballot receipt, so they do not prevent Mississippi from counting ballots postmarked before election day yet received afterward.”
Justice Samuel Alito dissented, joined by Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh. “The acceptance of these late-arriving ballots effectively postpones the date on which the electorate’s choice is made, and federal law precludes that postponement,” Alito claimed, even though late-arriving ballots do nothing to change a voter’s choice on Election Day, since ballots are still required to be submitted by then.
President Trump has long spread conspiracies about mail voting and most recently attacked California’s protracted vote count as a “rigged election.” The administration’s latest plan to undercut mail voting would require states to hand over their voter rolls to the Department of Homeland Security for the Postal Service to deliver mail-in ballots—a form of extortion that has generated furious pushback from election officials. The head of the Postal Service told the Senate they were following Trump’s directive, claiming that he wanted to ensure “the right ballots are going to the right people.” (A federal judge last week blocked key parts of a Trump executive order that authorized such a scheme.)
Alito’s dissent amplifies Trump’s conspiracies. “Today’s decision leaves open opportunities for voter fraud that may further undermine Americans’ faith in the integrity of this country’s elections,” he wrote. “Diverse sources have recognized that mail-in ballots increase the potential for fraud.”
In fact, every major study has shown that mail-in voting is safe and secure, but the fact that four justices signed on to Trump’s crusade to get rid of mail-in ballots is highly disturbing and could embolden the president to attempt to take even more drastic steps to make it harder to vote.
Today’s ruling should also not distract from the damage the Roberts Court has already done to voting rights. Its decision in late April, effectively destroying the Voting Rights Act, gave Republicans just enough time to dismantle majority-Black seats held by Democrats in Tennessee, Louisiana, and Alabama. That was followed by a series of orders by the Republican-appointed justices on the shadow docket that expedited the GOP’s efforts to erase Black representation and give their party additional seats before the midterms.
