Takeaways from arguments in the Supreme Court case that could end grace periods for mail-in ballots

By Tierney Sneed, John Fritze, Devan Cole, CNN

(CNN) — The Supreme Court’s conservative majority appeared dubious of state laws that allow the counting of mail ballots that arrive at election offices after Election Day as justices heard oral arguments in a challenge to Mississippi’s five-day grace period for mail ballots.

Over the course of more than two hours, justices raised an assortment of reasons why they saw those policies as problematic, seemingly embracing Republicans’ arguments that the state laws run afoul of statutes passed by Congress establishing Election Day in November for federal offices.

The lawsuit against Mississippi’s practice was brought by the Republican National Committee in 2024 and puts into jeopardy the mail ballot deadlines of several other states. Thirteen other states and the District of Columbia also set mail ballot receipt deadlines after Election Day, and 29 states, plus DC, count ballots that arrive after Election Day that are cast by military families and citizens living overseas in certain circumstances, according to the National Conference of State Legislature.

The Trump administration is supporting the RNC in the case, but it argues those overseas ballots can be carved out of a ruling against Mississippi.

It’s not clear how a ruling striking down Mississippi’s law would play out in November’s election. The risk that such a ruling could cause confusion during the midterms was only touched on briefly during the hearing.

The case is one example of how Trump and his allies have continued to try to curb mail voting, which was a frequent target of his false claims that the 2020 election was rigged against him. A ruling is likely to come by the end of June.

Here’s what to know from Monday’s arguments:

Conservative majority appears dubious of mail ballot grace periods

The six GOP appointees who make up the court’s majority put forward a host of reasons they were concerned about laws like Mississippi’s.

Several, including Justice Amy Coney Barrett, often seen as a possible swing voter – latched on to a line of questioning put forward by Justice Clarence Thomas – implying that permitting Mississippi’s law would also allow a voter have his ballot counted if he simply handed his ballots to his neighbor by Election Day.

Justice Brett Kavanaugh, another sometimes-swing vote on the court, also leaned into the arguments against grace periods for mail ballots. He raised the possibility that those regulations erode confidence in elections if late-arriving ballots determine the outcome and pointed to the fact that the practice expanded greatly during the Covid-19 pandemic, suggesting that undermined the idea that it has a long-established history.

When Paul Clement, the lawyer from the RNC, was up, he fielded mostly softballs from the conservatives. Justice Samuel Alito gave Clement the opportunity to respond to a Maryland law, cited by Mississippi’s defenders, that allowed for post-Election Day receipt in the early 1900s.

Barrett had some tough questions for Clement and US Solicitor General D. John Sauer. However, it wasn’t clear whether her sharp queries signaled she was inclined to uphold the Mississippi law or if she was grappling with how to write an opinion in the RNC’s favor that dealt with those historical complications.

Justices worry about impact on early voting

When the majority of the court begins drafting its opinion, it’s clear that another popular election practice will be firmly on the justices’ minds: Early voting.

Early voting isn’t technically at issue, but the back-and-forth over the arrival of absentee ballots dealt in a significant way with how to define the word “election.” The justices scrutinized what must happen on Election Day and what is permissible after that day – or before it. The court’s decision may well prompt future challenges to early voting, which most states offer.

Mostly quiet throughout the arguments, Chief Justice John Roberts jumped in with several questions aimed at understanding how a decision in favor of the RNC in the Mississippi case might affect early voting.

“If Election Day is the voting and taking, that has to be that day,” Roberts said, adding that he didn’t think Sauer was adequately explaining how early voting would not be jeopardized. “Maybe you’re not saying anything other than, ‘well, that’s different.’”

A majority of the court — both conservative and liberal justices — asked about early voting.

“You’re saying that we have to go back to the mid-19th Century and say could Congress have possibly conceived of this kind of rule,” said liberal Justice Elena Kagan, who led the questioning on the issue. “Congress couldn’t have conceived of the kind of early voting that we have now. It couldn’t have conceived of a thousand other ways in which we administer elections now.”

Mississippi’s attorney repeatedly raised that very point: Tossing out post-election ballot receipts could jeopardize other functions election officials have for decades conduced after the formal Election Day.

Sauer told the justices that the Trump administration agrees that “early voting is still acceptable.” But when pressed on how to square that view his theory of the case, Sauer conceded it was a “challenging question.”

One issue that drew less attention was how the case might affect overseas military ballots. Many more states permit those to arrive in election offices after Election Day, and Mississippi has touted a federal law that acknowledged those deadlines while making it easier for the overseas voters to cast their ballots.

Still, on Monday, both Clement and Sauer said the court could rule against Mississippi while preserving grace periods for overseas voters.

‘Recalled’ ballots becomes central focus for conservatives

A technical debate about the significance of voters being able to “recall” their ballots after they drop them in the mailbox took on an outsized role in the arguments — and may play prove pivotal in how the court decides the case.

The US Postal Service allows people to “recall” sent mail before delivery in some circumstances.

Several conservatives, including Justices Barrett and Neil Gorsuch — hammered Mississippi’s attorney on the point. The issue is important because the state argues that the selection of a candidate has occurred as soon as a voter fills out their ballot and places it in the mail.

But, the skeptical conservatives asked, how can a ballot be final if a voter can recall the mail before it reaches the election office? Gorsuch offered a hypothetical involving a candidate who becomes embroiled in a sex scandal in the final days of a campaign and a large number of voters attempt to recall their mail-in ballots, enough to change the outcome.

“Not farfetched, I think,” Gorsuch said. “In that hypothetical, does the election happen on Election Day?”

Mississippi Solicitor General Scott Stewart argued that the state doesn’t allow voters to recall their mailed ballots, but withered under scrutiny from Gorsuch and Barrett about how that works — or doesn’t — in practice. It’s not clear how often a voter attempts to stop a mailed ballot they have already shipped, but it is likely a small number.

Still, Barrett repeatedly returned to the question of finality and whether it undercuts how Mississippi is framing when an “election” takes place.

“I want to understand what your definition of finality is,” Barrett said at one point in an exchange that prompted several long pauses from Stewart. “It’s about your definition of ‘election.’ It’s about your definition of what it means to cast a vote.”

Liberal justice tries to make case about deference to states

The appeal by a liberal justice to see the case as about deference to states seemed to fall on deaf ears, even though that is an approach that typically animates conservatives, particularly in the election space.

Justice Ketanji Brown Jackson said the issue comes down to “who decides” when it comes to policy questions raised by mail ballot deadlines, such as how to handle recalled ballots or if postmarks should be required for ballots arriving after Election Day.

The Constitution generally leaves the administration of elections to states, but it also says Congress may step in with its own rules. In this case, Congress passed laws that standardized Election Day for federal offices as the Tuesday after the first Monday in November.

“The question, I think, is whether Congress has precluded the states from making those calls, drawing those lines, and your position, as I understand it, is, no,” Jackson said, “that the scantness of Election Day in the federal statutes, actually is appointed your favor, because it indicates that Congress was leaving it to the states to draw the various lines that might arise in this circumstance.”

If the court’s conservatives were seeing that case that way they didn’t voice it.

The main concern GOP-appointees on the court raised about the Republicans’ position was how it was using Civil War history to make its case and whether those arguments would foreclose early voting and other modern day election practices as well.

Risk of voter confusion in November not given much airtime

There was little attention during Monday’s hearing on the risk of confusing voters during November’s election with a ruling striking down Mississippi’s law and others like it.

Federal courts are often reluctant to tinker with election rules too close to a contest thanks to a two-decade-old legal doctrine from the Supreme Court that says such changes by judges should not be made, so as to avoid confusion among voters.

But when Kavanaugh became the only member of the court to raise the “Purcell principle” during the lengthy hearing, Clement quickly downplayed any notion that a ruling favorable to the Mississippi law’s challengers could create a chaotic situation later this year. Clement said the measure only applies to general elections, which would take place months after the court announces its decision, likely in late June or early July.

“I think June would give them plenty of time” to make the necessary changes, Clement said, adding that since absentee ballots in Mississippi must be mailed out 45 days before a general election, there would ample opportunity for instructions on how to cast the ballot to be tweaked.

But ahead of Monday’s arguments, election officials across the country were saying the complete opposite, warning that a switch could lead to mass confusion in this year’s election — and higher costs.

A group of local election officials told the justices that 13 other states, and Washington, DC, have similar ballot laws on the books and that changing their procedures to comply with the court’s ruling could be a tricky task.

“Eliminating post-election ballot receipt deadlines would affect nearly every aspect of the preparation for and administration of the general election in these states in 2026, just months before it is set to occur,” the group said in an amicus brief.

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