Federal law establishes Election Day for federal offices as the first Tuesday after the first Monday in November.

Sounds simple enough, doesn’t it?

But wait.

What about mailed absentee ballots? What about mail-in ballots?

Does federal law mean such ballots must arrive at local boards of election by Election Day?

Or does federal law mean they need only be postmarked by Election Day?

At issue before the U.S. Supreme Court, with a decision expected by June, is this very question.

The challenge is to Mississippi law, which requires that ballots (1) be postmarked by Election Day and (2) arrive by five business days afterward.

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That’s not good enough, say two challengers to the law in Watson v. Republican National Committee: Plaintiff Republican National Committee and Plaintiff Libertarian Party of Mississippi.

Election Day means Election Day, they say, and voting concludes on Election Day. Voting, they say, means not just the mailing of the ballot but the receipt of the ballot: Just as you can’t vote by showing up at your friendly-neighborhood polling place after Election Day, you must get your absentee or mail-in ballot to your board of elections by Election Day.

There has to be a deadline, and Election Day is the deadline, the GOP and the Libertarians say.

To put it in legal terms: The GOP and the Libertarians say federal law pre-empts–which means trumps, with a small t, pun intended–state law such as Mississippi’s.

Here’s part of how the GOP puts it in its brief: “Contemporary dictionaries confirm that ‘election’ as Congress used it refers to the public process of selecting officers. That process culminates with receipt of ballots by the (s)tate, not with the voter’s choice of a candidate. The election-day statutes tell (s)tates when they must conclude the public process–not when voters must make their choices. …

“Historical practice supports that intuitive reading. For decades, (s)tates did not count ballots received after election day. It was not a practice at the time Congress enacted the election-day statutes, and it remained unheard of for many decades after. A few instances of post-election receipt popped up in the 20th century, but those rare and mostly short-lived laws do not establish a practice that could overcome the historical consensus. …

“No other federal statute revises the meaning of the ‘day for the election.’ Indeed, each time Congress has spoken on the timing of mail ballots, it has confirmed ballot receipt as the definitive election-day act. When Congress has provided for absentee voting in limited contexts, it has never permitted post-election receipt of ballots–either explicitly or implicitly. No federal statute sanctions that practice, and no inference that Congress acquiesced to relatively new state practices can overcome the meaning of the election-day statutes.”

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Not so fast, says Mississippi.

“Under the federal election-day statutes, ballots must be cast–not received–by election day. That conclusion flows from text, precedent, and history. Those statutes set the federal ‘election’ day. An ‘election’ is the conclusive choice of an officer. The voters make that choice by casting their ballots. So federal law requires only that voters cast their ballots by election day. The election has then occurred, even if state officials do not receive all ballots by that day.

“Mississippi law comports with the federal election-day statutes. Under Mississippi law, the voters–including … absentee voters–make their conclusive choice of officers by federal election day because they must cast their ballots by that day.

“The (New Orleans-based federal) court of appeals erred in holding that the federal election-day statutes require ballots to be received by election day. The decision defies text, precedent, and history; it would doom laws in most (s)tates today.”

That’s an effect the challengers may well have by prevailing in the high court.

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It’s not hard to surmise that the GOP and the Libertarians, by bringing their challenges, are trying to deter cheating.

The Libertarians say so in the first two sentences of their brief: “This case is about whether federal elections end on the statutorily designated Election Day, or whether the receipt of ballots can continue for days or weeks later. When Congress enacted the Election-Day statutes, it did so to set a uniform day of national elections and to prevent real or perceived fraud occasioned by states setting Election Day at disparate times.”

Could it be, do you suppose, that Republicans, Libertarians, and others are tired, thank you very much, of unexpected “ballots” “coincidentally” appearing after Election Day in places where Election Day results are close?

Hmmmm.

Stay tuned for this decision. This may well affect any state not requiring that all ballots arrive by Election Day.

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Dr. Randy Elf, who has practiced political-speech law across the country, notes the humorous irony in the RNC’s bucking election law in Mississippi, which has become a dark-red state. Go figure.

COPYRIGHT © 2026 BY RANDY ELF