Supreme Court Arguments Involved Misleading Claims About Mail Ballots

The Supreme Court heard oral arguments in March in a case that could unfairly disenfranchise voters who rely on mail voting and impose additional burdens on election administrators leading into the midterm elections. Such a ruling would mean a majority of the Court misinterpreted federal law and likely accepted misleading claims about mail voting.

The arguments in Watson v. Republican National Committee, a case challenging a Mississippi law that counts mail ballots sent by Election Day if they arrive within a few days after Election Day, occurred shortly before President Trump issued an executive order seeking to displace states’ mail voting laws. (The Brennan Center and other voting rights groups are challenging the order in court.) That order could deny eligible voters access to mail voting. Like the claims being considered by the Court in Watson, it is rooted in baseless allegations of problems with mail voting. Both threaten to sow distrust in our elections and undermine Americans’ freedom to vote.

Breaking from State Practices

Millions of Americans vote by mail, a method that is reliable and safe. Under the Constitution, states have the power to regulate the “time, place, and manner” of federal elections, while Congress maintains superseding authority to make or alter such rules. This includes setting rules related to mail voting.

Mississippi is among 30 states, the District of Columbia, and three U.S. territories that have “grace period” laws allowing at least some voters’ mail ballots to be counted when they are sent by Election Day and arrive afterward. Of those, 14 states — including Mississippi — along with DC and three U.S. territories provide a grace period for all voters. Sixteen states provide a grace period specifically for military and overseas voters.

In early 2024, the Republican National Committee and the Libertarian Party of Mississippi filed lawsuits alleging that Mississippi’s grace period is preempted by century-old federal “Election Day” laws requiring states to have presidential and congressional elections on the first Tuesday of November. Those laws set the day by which ballots must be cast, but not when states must receive and count ballots.

A federal district court rejected the challenges, but the Court of Appeals for the Fifth Circuit reversed.

Counterfactual Claims at Oral Argument

During oral argument, several justices focused on concerns divorced not only from the realities of mail voting but also from the legal issues in the case.

Justices Neil Gorsuch and Amy Coney Barrett, for example, asked whether Mississippi might allow a voter to recall their mail ballot after an election through the U.S. Postal Service or a common carrier like FedEx — an act that is incredibly unlikely. Indeed, as Mississippi Solicitor General Scott Stewart confirmed, the case does not concern the recall of ballots, and Mississippi has no history of voters attempting to recall ballots.

As another example, Mississippi’s law only allows election officials to count ballots received after Election Day if those ballots are timely submitted by mail. But Justice Clarence Thomas, as well as Gorsuch and Barrett, peppered Stewart with questions that implied grace period laws could open the door to ballots being considered “cast” if a voter simply handed their ballot to a neighbor who then deposited the ballot after Election Day. Questions like these are far-fetched hypotheticals devoid of actual evidence. Worse, they echo years of unfounded concerns used to justify attacks on voters receiving assistance to cast their ballots, including those who have limited English proficiency or disabilities.

At other points during oral argument, attorneys for both the Republican National Committee and the United States took historical facts out of context or overlooked them entirely. During the Civil War, for example, most states in the Union passed laws enabling soldiers to vote away from home. Contrary to the challengers’ characterization, and as Justice Sonia Sotomayor pointed out, this included at least two states that did not receive and count soldiers’ ballots until after Election Day. When it came to at least two historical treatises the United States quoted in its brief, Sotomayor told Solicitor General John Sauer that she was “a little upset — not a little, a lot upset — by many of the statements in your brief quoting historical sources out of context.”

It wasn’t just the attorneys who made factual mistakes. While Justice Brett Kavanaugh characterized grace periods as a recent development, multiple states had grace period laws in the 1920s and 1930s, during World War II, and in the decade before the Covid-19 pandemic.

Effects on Voters

The baseless factual claims being made in this case harken back to other voting rights cases where federal courts, especially the Supreme Court, have ignored important facts. In Shelby County v. Holder, which dismantled a key provision of the Voting Rights Act, the Court ignored how Congress had considered recent incidents of discriminatory voting laws. In Rucho v. Common Cause, where the Court ruled that federal courts can’t decide partisan gerrymandering claims, it ignored computer simulations showing that the districts in the case had been drawn based on extreme partisan bias. The Court is currently considering whether to take up Turtle Mountain Band of Chippewa Indians v. Howe, in which the Court of Appeals for the Eighth Circuit ignored the decades-long consensus that individuals whose voting rights have been violated can sue in federal court.

Misleading claims like the ones raised at the Watson oral argument risk distracting the Court and the public from a key fact: Some voters face hurdles that others do not.

A friend-of-the-court brief that the Brennan Center and co-counsel Covington & Burling filed in Watson on behalf of individuals and organizations representing military and overseas voters noted, for example, that voters living outside their home state can face particular challenges due to mail delays. Military voters in Japan report that their mail can take six to eight weeks to arrive from the United States. Two voters in Germany mailed their ballots from their army post office three weeks before the election, but their ballots did not arrive until the day after Election Day.

Paul Clement, who represented the Republican National Committee, suggested at oral argument that mail difficulties could be remedied by state laws allowing overseas voters to email their ballots. But electronic transmission is not always an option for overseas citizens or service members in remote areas. Difficulties like these explain why Congress has passed multiple federal laws, including the Uniformed and Overseas Citizens Absentee Voting Act of 1986, that facilitate military and overseas voting. Those laws incorporated states’ deadlines for receiving ballots.

Stateside voters face hurdles too. Mail voting can be a lifeline to exercising their right to vote for voters who have disabilities or live in rural areas within their states, such as part of Alaska, or outside their home states entirely. Still, that lifeline can come with extra steps to register to vote and to receive and return a ballot. Grace period laws can make a difference in states that have chosen to enact them. In 2024, at least 750,000 ballots — roughly the population of a congressional district — were postmarked by Election Day and received within grace periods. And that figure does not include ballots in states that provide grace periods specifically for military and overseas voters.

States, including Mississippi, have decided to enact grace periods to address the issues faced by voters who rely on mail ballots. Justice Ketanji Brown Jackson asked whether, when setting a uniform federal Election Day, Congress meant “to cabin the states so that they did not have the discretion to make these kinds of decisions?”

It did not. A decision striking down grace periods could cause confusion for voters and election officials and harm communities’ access to the ballot. The Supreme Court should center voters — and Congress’s choices ensuring that states can serve their voters — as the Constitution intends.