The U.S. Supreme Court has agreed to hear arguments in a Mississippi case that could have a major effect on Illinois’ efforts to promote voting by mail, as the high court is expected to decide whether such ballots, cast and postmarked on or before Election Day in a general election, can be counted afterward.
The combined suit — brought by the Republican National Committee and the Libertarian Party and backed by the conservative law group Judicial Watch — asks the nation’s high court to uphold a 5th U.S. Circuit Court of Appeals decision that said ballots must be received by Election Day in November in order to be counted.
Under Illinois law, mail-in ballots that are postmarked or certified on or before Election Day can be counted by local election authorities up to 14 days after the election. A 2020 law enacted during the COVID-19 pandemic by Mississippi allowed mail-in ballots to be counted within five business days of Election Day.
The court’s decision could have wide-ranging ramifications for Illinois and as many as 27 other states and the District of Columbia, where local and state laws allow post-Election Day ballots to be counted. Illinois filed a brief in support of upholding the existing Mississippi law.
Judicial Watch is also behind a similar effort to curb post-Election Day vote counting in a federal suit filed on behalf of veteran downstate Republican U.S. Rep. Mike Bost of Murphysboro. Federal courts in Chicago rejected the lawsuit, saying Bost lacked standing to file suit. The Supreme Court has heard oral arguments on the standing issue, but has not yet ruled.
The high court’s Mississippi decision could come as early as July, only a few months in advance of next year’s critical midterm elections, which will decide control of Congress. Democrats have traditionally been better organized in conducting early voting and vote-by-mail campaigns, while President Donald Trump has urged voting only to occur on Election Day, falsely contending that mail-in ballots are rife with fraud.
Illinois has taken several steps to expand voting, including mail-in voting, and recently allowed voters to tell local election authorities to permanently send them vote-by-mail ballots.
In the 2020 COVID-19 general election in Illinois, one-third of the nearly 6.1 million ballots cast were done by mail. In 2022, mail ballots accounted for nearly 18% of the 4.1 million votes cast, while last year, nearly 1 in 5 of the 5.7 million ballots cast came through the mail.
In the 2022 general election in Illinois, more than 110,000 ballots were returned and counted in the 14-day post-election period, including 3,252 overseas votes cast by military members. In last year’s general election, more than 99,000 ballots arrived and were counted in the two-week period after Election Day, including nearly 1,000 military ballots.
At issue is the Oct. 25, 2024, ruling by a panel of the 5th U.S. Circuit Court of Appeals that contends the federal statute establishing a uniform day for federal elections, and the U.S. Constitution’s Elections Clause, requires all ballots to be both “cast by voters and received by state officials” by the end of Election Day.
The appeals court said the term “election” includes both the casting and receipt of ballots and that an election is completed when all ballots are received.
“Text, precedent, and historical practice confirm this ‘day for the election’ is the day by which ballots must be both cast by voters and received by state officials,” the appellate court ruled, adding that “a ballot is ‘cast’ when the state takes custody of it,” not when a voter fills out the ballot.
Reacting to the Supreme Court’s decision Monday to hear the case, Ken Martin, the chair of the Democratic National Committee, called the lawsuit a multipronged effort by Trump and Republicans to restrict vote-by-mail and early voting.
“Voting by mail and voting early are safe, secure, and empower more eligible voters to participate in our elections. That is a good thing for our democracy,” Martin said in a statement. “The DNC will fight like hell in this case for the rights of Mississippians and every other citizen to make sure their voices are heard and their votes are counted.”
But Tom Fitton, the president of Judicial Watch, said the nation’s highest court “now has an opportunity to reaffirm that ‘Election Day’ means what it says under federal law.”
“Counting ballots received after Election Day not only violates federal law but encourages voter fraud and undermines voter confidence,” Fitton said.
