The Latest: Supreme Court will decide whether states can keep counting late mail ballots

A final ruling will almost certainly come by late June, early enough to govern the counting of ballots in the 2026 midterm congressional elections.

Here's the latest:

Alaska elections office says it is closely monitoring the case

The Alaska Division of Elections in a statement Monday said it is monitoring the case closely and will review any final ruling from the court once one is issued.

“At this stage, we are continuing preparations for the 2026 election cycle under the laws currently in effect,” the statement, provided by spokesperson Steve Kirch, said.

“If a ruling requires operational changes, we will work through those in coordination with the appropriate state entities to ensure compliance and to provide clear information to voters.”

Supreme Court seems skeptical of late mail ballots

The Supreme Court ’s conservative majority sounded skeptical of state laws that allow the counting of late-arriving mail ballots.

The court heard arguments in a case from Mississippi that also could affect voters in 13 other states and the District of Columbia, which have grace periods for ballots cast by mail.

An additional 15 states that have more forgiving deadlines for ballots from military and overseas voters also could be impacted.

A ruling is expected by late June, early enough to govern the counting of ballots in the 2026 midterm congressional elections.

The court challenge is part of Trump’s broader attack on most mail balloting, which he has said breeds fraud despite strong evidence to the contrary and years of experience in numerous states.

Several conservative justices gave voice to some of Trump’s complaints.

Defending the state law, Mississippi Solicitor General Scott Stewart pointed out that the Trump administration and its allies in the case have yet to submit a single case of fraud due to late-arriving mail ballots.

The court’s liberal justices indicated they would uphold state laws with post-Election Day deadlines.

Kavanaugh asks about possibility of election disruption

Justice Brett Kavanaugh asked whether the court’s legal principle that decisions shouldn’t disrupt upcoming elections would stay their hands if the justices forbade states from counting mail ballots received after Election Day.

Such a ruling would probably come down in June and require several states to overhaul their election procedures before the November election. “June would give them plenty of time,” Clement said.

Conservatives seem skeptical about late mail-in ballots

Most of the conservative justices seem dubious about state laws in Mississippi and elsewhere that allow the counting of late-arriving mail ballots.

Arguments are still ongoing, but the questions so far from the high court’s supermajority point to a ruling against those state laws, a persistent target of President Donald Trump.

The eventual decision could affect voters in 13 other states and the District of Columbia, which have grace periods. An additional 15 states that have more forgiving deadlines for ballots from military and overseas voters also could be impacted.

Attorney for GOP and Libertarian parties begins his arguments

Paul Clement, representing the Republican and Libertarian parties, began his argument by saying that post-Election Day deadlines are wrong as a matter of “text, precedent, history and common sense.”

He had a partisan spat with Justice Sonia Sotomayor over the Republican party’s contention that late-arriving military and overseas ballots also should not be counted if they arrive after Election Day.

Sotomayor cracked that “we should have another president” because in the 2000 Florida election, late-arriving military ballots were tallied, helping lead to Republican George W. Bush’s presidency.

“That is the reddest of red herrings,” Clement retorted.

Clement argued that historical laws for absentee military ballots still required them to be received by Election Day.

He later added that the plaintiffs would have “no objection” to the Trump administration’s argument that would exempt military ballots.

Finality and Election Day

Justice Amy Coney Barrett appeared concerned about the possibility that state late-ballot laws could allow people to recall ballots sent in by mail.

Mississippi doesn’t allow that, but Barrett asks a series of questions about whether that could happen in other states. She seems to say that if recalling a vote is a possibility, a mail-in ballot may not truly be the voter’s final decision. That would cut against the state’s defense of its law.

Justice Ketanji Brown Jackson, meanwhile, chimed in to say that those questions appear to be policy decisions and suggests that Congress has allowed states to make those decisions.

Arguments open with questions from conservative justices

The arguments have opened with conservative justices asking questions about who a state can authorize to accept ballots.

The subtext here is the practice that conservatives have targeted known as “ballot harvesting.” In some states, non-governmental officials like families or even neighbors or nursing home administrators, can collect sealed ballots from voters. Conservatives are pushing back on Mississippi’s argument that the 1845 law passed by Congress setting a date for Election Day doesn’t open the door to further regulations of state elections.

Justice Samuel Alito cut to the chase when he asked Stewart: “So there are no limits?”

The case wound through conservative 5th U.S. Circuit Court of Appeals

Republicans looking to interest the justices in taking up the issue could have sued in New York, Illinois or Washington, among other states with relaxed deadlines for receiving mailed ballots.

But they chose heavily Republican Mississippi to put the case in front of the 5th circuit, where a panel of three Trump appointees struck down the state law.

The Supreme Court is much more likely to intervene when a lower court has struck down a state law, reasoning that the nation’s highest court should have the final word on such things.

Current and former solicitors general team up

Solicitor General D. John Sauer, in his eighth Supreme Court argument, is urging the court to rule out late-arriving ballots, except for voters in the military and overseas.

Sauer’s biggest win to date was the presidential immunity decision that spared Trump from being tried for his effort to overturn the 2020 election. Paul Clement, who held Sauer’s job under George W. Bush, is arguing his eighth case this term among more than 125 arguments since 2001.

Both men were Supreme Court law clerks to Justice Antonin Scalia early in their legal careers. Mississippi Solicitor General Scott Stewart is defending the state law in his second Supreme Court argument. In his first appearance, Stewart persuaded the court to overturn the constitutional right to abortion in the landmark Dobbs case in 2022. Stewart was a law clerk for Thomas.

Be Careful What You Oppose

Three of the four states where mail-in voting gained in popularity in the 2024 presidential election voted for President Donald Trump.

A U.S. Election Assistance Commission study of data collected at the local level and submitted by states showed that voters from Indiana, South Dakota and Utah saw higher percentages of mail voting during Trump’s successful 2024 than 2020. Washington was the fourth state in the group.

Overall mail in balloting was more popular in 2024 than in pre-pandemic years with roughly 30% of voters using that method to vote while mail ballots typically accounted for about 25% of votes cast in pre-pandemic years. The 2020 election saw 43% of votes come through the mail.

California election official worries about wider consequences

Jesse Salinas, president of the California Association of Clerks and Election Officials, says his organization’s members are concerned that a potential ban on mail ballot grace periods could mean ballots of all kinds would be required to be counted by 11:59 p.m. on Election Day.

Large numbers of young voters use California’s same-day registration system to cast ballots that are typically counted after other tallies are completed.

“So all of those folks who will want to register and vote on Election Day, we just simply won’t have the ability to process all those” ballots before midnight, he said.

A ruling against the Mississippi law could have a profound effect on the nation’s largest state

Alaska, more than twice the size of Texas, is dotted with small communities in far-flung places, many of them accessible only by air or water. Some political leaders and Native voting rights activists say the state’s 10-day grace period for absentee mail ballots is essential given the state’s unique geography and the limited postal service in rural areas.

In the 2022 general election, about 20% of all absentee ballots statewide were received after Election Day. The percentage was much higher for ballots from some of the state’s most rural communities.

The state’s senior U.S. senator, Republican Lisa Murkowski, says “there’s probably no other state where this ruling could have a more detrimental impact than ours.”

Alaska Native voting rights advocates and the state’s attorney general and solicitor general filed briefs with the Supreme Court to explain the importance of the state’s ballot grace period and the rationale behind it.