At issue is whether federal election law requires all mail ballots to be received by Election Day, or whether states may count ballots that arrive shortly afterward, as long as voters mailed them on time. Mississippi’s law, adopted in 2020 in response to the COVID-19 pandemic, allows counties to count absentee ballots postmarked by Election Day that arrive within five business days. A three-judge panel of the Fifth U.S. Circuit Court of Appeals struck that down last fall, ruling the grace period conflicts with federal statutes establishing a uniform Election Day for federal offices.
Mississippi appealed, and the Supreme Court is expected to hear arguments early next year.
A ruling that could affect millions
The case carries national implications. More than 30 states and Washington, D.C., have similar ballot counting rules on the books, with varying deadlines. Some allow three days, some seven, and a few allow more than a week.
Mississippi College law professor Matt Steffey said federal law has long been interpreted to mean that voters must cast their ballots by Election Day, not that election officials must have all ballots in hand that night. Ballot acceptance, processing and counting, he noted, often continue for days in every state
“This panel is an outlier,” Steffey said. “It’s silly, really, to say that Election Day means the day that we know for certain the outcome.”
He added that the Fifth Circuit’s ruling, if upheld, would almost certainly lead to more litigation over other parts of the voting process, including ballot curing and early voting.
The people most affected
Disability advocates say the grace period is essential for many Mississippians who cannot reliably vote in person.
Jane Carroll, communications director at Disability Rights Mississippi, said absentee voting by mail is not just a convenience for the disability community.
“Absentee by mail really is the most accessible way for many people to vote in our state, so it’s incredibly important,” Carroll said.
Carroll said in-person voting in Mississippi can be especially difficult in rural areas, where polling places are far apart, often lack public transit and still fail to meet accessibility standards.
“I’ve seen polling locations where there’s only one way in and it’s got a set of stairs,” Caroll said.
Mississippi also has one of the most burdensome absentee voting systems in the country, requiring most voters to get both their application and their ballot envelope notarized — a two-step process few other states mandate.
Given those barriers, Carroll said losing the five-day receipt window could disproportionately disenfranchise disabled voters who already face more steps, delays and logistical hurdles navigating the absentee ballot process.
“Integrity in elections is making sure that every voice is heard and every vote counted,” Carroll said.
Mississippi as a test case
Although Mississippi is one of many states with a grace period, Steffey said national political groups saw the state as a strategically favorable place to bring a challenge. The case then landed before three of the most conservative judges on the nation’s most conservative appellate court.
“Mississippi has been a receptive place for this,” Steffey said. “Because it’s small, and because it skews politically one way, I think it’s easier to nudge this argument to the front of the line.”
He noted that the Supreme Court rarely agrees to hear a case simply to affirm a lower court’s decision.
“Often the fact that cert has been granted means at least four justices believe a lower court opinion should be reversed, restricted or re-examined,” Steffey said.
Looking ahead
A decision is expected by late June or July. If the Supreme Court upholds the Fifth Circuit ruling, Mississippi and dozens of other states would have to rewrite their absentee ballot rules before the 2026 midterms.
Voting-rights groups warn that could cause widespread confusion, and Steffey thinks the justices may have taken the case primarily to give states clarity long before ballots start going out.
“Ambiguity is the worst enemy of free and fair elections,” Steffey said.
Carroll said that whatever the outcome, the disability community will continue pressing for voting systems that do not penalize people for circumstances beyond their control.
“We don’t want a voter with a disability to have to choose between their health and safety and their ability to participate in the electoral process,” Carroll said.
