By James Romoser
WASHINGTON -- The Supreme Court seems inclined to block states from counting mailed ballots that are postmarked by Election Day but arrive a few days afterward.
During a lively two-hour hearing Monday, key conservative justices appeared sympathetic to arguments from the Trump administration and the Republican Party that all ballots must be in the hands of election officials by Election Day in order to count.
A decision saying so would strike down laws in 14 states that allow a grace period for mailed ballots to arrive, provided that voters drop them in the mail by Election Day. About a dozen other states have a similar grace period that applies only to military and overseas voters. No states accept ballots that are postmarked after the election.
The high court's decision is expected by this summer. Justice Brett Kavanaugh asked the Republican Party's lawyer, Paul Clement, if there would be enough time for the decision to take effect and apply to midterm elections this fall. Clement said there would be.
A broad ruling from the court could bar states from counting hundreds of thousands of late-arriving ballots.
In the 2024 general election, more than 750,000 ballots were mailed by Election Day and arrived shortly afterward in states with general postelection grace periods. In those states, ballots that arrived within the grace period typically made up a small percentage of all votes cast -- anywhere from 0.1% to 3%.
The states that allow ballots to arrive after Election Day span the political spectrum, from California and Washington to Texas and West Virginia. The case at the Supreme Court challenges a law in Mississippi that allows ballots to arrive up to five business days after Election Day.
President Trump has denigrated mail voting. He often spreads debunked claims that mailed ballots are rife with fraud, and he has blamed mail voting for his 2020 loss.
Justice Samuel Alito suggested during Monday's oral argument that voters don't trust the results of elections when ballots are accepted after Election Day.
"Confidence in election outcomes can be seriously undermined if the apparent outcome of the election on the day after the polls close is radically flipped by the acceptance later of a big stash of ballots," Alito said.
Kavanaugh echoed worries about what he called an "appearance of fraud," asking at one point: "Wouldn't it make more sense to take account, in some respect, of that concern?"
Trump has made clear that he believes limiting mail voting would be a boon to Republican candidates. The challenge to the Mississippi grace period was brought by the Republican National Committee, and the Trump administration sided with the RNC at the Supreme Court.
During the Covid-19 pandemic, Democrats embraced mail voting more readily than Republicans. Still, it isn't clear that eliminating postelection grace periods would automatically favor Republicans across the board. In some states, mail voting is popular in rural, conservative areas. Military voters also rely on it heavily.
Mississippi's Republican-controlled state legislature enacted its five-day grace period in 2020, and the state's Republican-appointed solicitor general, Scott Stewart, defended the law in court. Stewart is best known for arguing and winning the 2022 case that overturned Roe v. Wade and eliminated the constitutional right to abortion.
At the Supreme Court, lawyers for the RNC and the Trump administration argued that when Congress established federal Election Day as the Tuesday after the first Monday in November, it effectively required all ballots to be received by that day. They also said that, throughout American history, policymakers believed ballots needed to be in state custody no later than Election Day.
The court's three liberal justices pushed back, saying that the historical evidence is inconsistent and that Congress never intended to prevent states from setting their own rules about grace periods for ballots that are mailed by Election Day.
"Congress has not indicated -- at least thus far -- that it intended, ever, to pre-empt this," Justice Ketanji Brown Jackson said.
Justices across the ideological spectrum also questioned whether a decision in favor of the RNC would jeopardize early voting. Clement and Trump's solicitor general, D. John Sauer, said they are not contesting the legality of early voting in this case, as long as early ballots are received by the state by Election Day.
Write to James Romoser at james.romoser@wsj.com
(END) Dow Jones Newswires
March 23, 2026 15:44 ET (19:44 GMT)
Copyright (c) 2026 Dow Jones & Company, Inc.
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