Using Unproven Fraud Claims to Make Voting by Mail Harder

The Supreme Court is set to decide a case that could overturn laws in 30 states that provide grace periods, which allow counting mail ballots received after Election Day but sent on time. Meanwhile, President Trump has issued two executive orders seeking to displace states’ mail voting laws, including one that attempts to deny federal funds to states that do not reject mail ballots received after Election Day. (The Brennan Center and other voting rights groups have challenged both orders in court.)

These efforts seek to undermine state policies for when mail ballots may be counted. They are centered on false claims about mail ballots and misreading of election law and are occurring as states pass restrictive voting laws — some of which even rely on the executive orders or the ongoing litigation.

While many states have expanded access to mail voting since 2020, between 2020 and 2025, 27 states enacted laws restricting mail voting. These restrictions have followed false claims by Trump and his allies about fraudulent mail ballots. Indeed, Trump made similar claims due to ballot processing times following California’s recent primary. These false claims and restrictive laws around mail voting persist even though the overwhelming evidence shows that it continues to be safe and secure.

Laws restricting mail voting include laws eliminating grace periods. Notably, between 2020 and 2025, at least seven states, including Arkansas, Iowa, Kansas, North Carolina, North Dakota, Ohio, and Utah, have either tightened the deadline for returning a mail ballot or blocked officials from accepting mail ballots arriving after Election Day. At least four states have done so in the past year, including two that did so after the executive orders or Supreme Court litigation.

North Dakota eliminated its grace period, which counted mail ballots so long as they were postmarked by the day before Election Day, in April, shortly after Trump’s March 2025 executive order on voting. Among other things, that order illegally directs the Election Assistance Commission, an independent federal agency, to condition funding on a state’s adherence to an Election Day ballot-receipt deadline, even if the ballots were submitted on time under state law. Just three weeks after Trump issued the order, state legislators amended an elections bill to include a new section “addressing the new executive order” by eliminating the state’s grace period.

Then, in December 2025, Ohio passed a law eliminating its grace period, which counted ballots postmarked before Election Day and received by the fourth day after (a period that Ohio had already shortened in 2022 from the tenth day after the election). One of the 2025 bill’s sponsors pointed to Trump’s executive order. But Ohio lawmakers also made their decision while the Supreme Court case, Watson v. Republican National Committee, had yet to be argued, let alone decided.

That case began in early 2024 under a sham legal theory: that century-old federal “Election Day” laws, which require states to have presidential and congressional elections on the first Tuesday of November, preempt Mississippi’s policy of accepting mail ballots postmarked by Election Day and received within five business days thereafter. Those federal laws do not set the date by which states must receive and count ballots, and a federal district court rejected the lawsuit. But in March 2025, the U.S. Court of Appeals for the Fifth Circuit reversed the ruling in a deeply flawed opinion that inaccurately described the plain text, historical practice, and congressional history of the “Election Day” laws.

The same week in November 2025 that the Supreme Court agreed to hear Watson, Ohio’s Legislative Budget Office cited the Fifth Circuit’s flawed reasoning in its analysis for lawmakers. By the following month, Ohio had eliminated the state’s grace period except for military and overseas voters. (Mississippi, for its part, recently enacted a “trigger law” that, if the Court overturns Mississippi’s current grace period, will require mail ballots to be received a full day before Election Day.)

To be sure, North Dakota and Ohio lawmakers also pointed to other states that do not provide grace periods. But North Dakota and Ohio’s passing of restrictive voting laws following a contested executive order and grace period-related litigation, respectively, shows the damage that the executive branch and courts alike can cause by elevating debunked legal theories.

In contrast with the executive order and Watson litigation, multiple states have exercised their authority to develop mail voting policies under a different approach: addressing voters’ needs. Today, at least 14 states, the District of Columbia, and three other U.S. territories provide a grace period for all voters. At least 16 states provide a grace period specifically for military and overseas voters. And Montana provides a grace period specifically for users of the Federal Write-In Absentee Ballot, which serves as a backup ballot for military and overseas voters.

During the Civil War, officials in states including Maryland, Maine, New Hampshire, and Rhode Island gave military voters additional time after Election Day to have their ballots arrive so they could be counted. In 2010, U.S. Postal Service delays resulted in over 26,000 mail ballots arriving too late to be counted in California’s general election. This led California to adopt a three-day grace period for all voters, which the legislature lengthened to 17 days during the Covid-19 pandemic and shortened to 7 days following the pandemic. Texas decided in 2005 to accept ballots postmarked by Election Day and received the day after. It added longer deadlines in 2017: five days after Election Day for civilian ballots and six days for military service members deployed abroad and their families. And some states, like Alabama and Colorado, that have adopted grace periods specifically for military and overseas voters have done so to build upon protections embedded in the federal Uniformed and Overseas Citizens Absentee Voting Act.

Lawmakers who focus on voters when enacting election laws recognize that some face unique hurdles when accessing the ballot box. As the Brennan Center and co-counsel Covington & Burling noted in a friend-of-the-court brief in Watson, overseas civilian and military voters can face mail delays that prevent ballots from arriving on time, through no fault of the voter. Rural voters, like many in largely rural Alaska, can be wholly dependent on mail voting to participate in elections. So too can voters with disabilities, or certain communities of color that may rely on mail voting as an effective alternative to in-person voting. Indeed, recent research on the rescission of Ohio’s grace period suggests that thousands of valid votes in the 2024 election would not have been counted under the new rules.

Court decisions sanctioning Trump’s unconstitutional executive orders or the misleading claims underpinning Watson could add to the burdens some voters already face. But even if Trump’s executive orders fail and the Supreme Court upholds the grace period at issue, policymakers and advocates should still be concerned about how lawmakers can turn the false claims behind executive orders and litigation into restrictive state voting laws.