What is the definition of "day"? For most people, "day" means a 24-hour period from midnight to midnight. For some states, "day" can mean 120 hours or more, starting at the end of Election Day.
The bigger question today was: How will the Supreme Court define "day" in terms of elections?
We already know how the Fifth Circuit defines "day." The appellate court's unanimous decision in October 2024 invalidated mail-in ballots received after polls close on Election Day in RNC v Mississippi. The court ruled that the Constitution specified "day" as a partlcular limitation, with the intent to provide timely election results, even in an era where traveling to vote presented more difficulties than any faced today. Judge Andrew Oldman wrote in the ruling that "day" means exactly what everyone knows it means, and that Congress chose that definition deliberately:
Two constitutional provisions are relevant to this case. First, the Electors Clause provides: “The Congress may determine the Time of chusing the Electors” for President. U.S. Const. art. II, § 1, cl. 4. Pursuant to the Electors Clause, the Second Congress mandated that States appoint presidential electors within a 34-day period “preceding the first Wednesday in December in every fourth year.” Act of Mar. 1, 1792, ch. 8, § 1, 1 Stat. 239. Some States responded by adopting multi-day voting periods—but this caused election fraud, delay, and other problems. See, e.g., Cong. Globe, 28th Cong. 2d Sess. 14–15, 29 (1844). So Congress intervened in 1845, fixing a “uniform time” for appointing presidential electors on the Tuesday after the first Monday in November. Act of Jan. 23, 1845, ch. 1, 5 Stat. 721 (to be codified at 3 U.S.C. § 1).
The second relevant constitutional provision is the Elections Clause. It provides: “The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” U.S. Const. art. I, § 4, cl. 1. The Elections Clause imposes a “duty” upon States to hold elections for federal officers. Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 8 (2013). It also vests “power” in Congress to “alter those [state] regulations or supplant them altogether.” Ibid. In the early Republic, congressional elections occurred at varying times, providing some States with an “undue advantage” of “indicating to the country the first sentiment on great political questions.” Cong. Globe, 42d Cong., 2d. Sess., 141, 116 (1871). And the establishment of a uniform day for presidential elections resulted in many States having two separate days for federal elections. Id. at 141. As a result, Congress scheduled all House elections to occur on the presidential election day. Act of Feb. 2, 1872, ch. 11, § 3, 17 Stat. 28 (to be codified at 2 U.S.C. § 7).
As expected, the state of Mississippi appealed the ruling to the Supreme Court. Also as expected, the justices looked on the idea of a 120-hour or 168-hour day with considerable skepticism. The New York Times reports that the oral arguments earlier today made it clear that Oldman's original ruling was compelling:
The justices appeared divided along partisan lines, with the court’s six conservatives expressing deep skepticism with Mississippi’s law during arguments held on Monday. The state’s law allows ballots to be counted if they are postmarked by Election Day but received within five business days afterward.
At least 18 other states and territories also allow ballots to be counted so long as they are postmarked by Election Day. The justices repeatedly pressed the lawyer for Mississippi on what is required to make a ballot selection final, suggesting that federal law sets out Election Day as the day ballots should be considered final.
“So when do I know whether or not a choice is final?” Justice Clarence Thomas asked the lawyer for Mississippi.
Several other conservative justices including Justice Amy Coney Barrett, who is often a key vote, also had sharp questions for Mississippi. They focused on how the state could determine when a ballot had officially been cast, particularly because Mississippi allows late-arriving ballots to be counted when delivered by FedEx.
Those arguments may not have convinced the court's liberal justices, who fell back to reliability arguments and to the question of military ballots. The Associated Press picked up both arguments in brief:
The court’s liberal justices indicated they would uphold state laws with post-Election Day deadlines.
“The people who should decide this issue are not the courts, but Congress, the states and Congress,” Justice Sonia Sotomayor said.
Forcing states to change their practices just a few months before the election risks “confusion and disenfranchisement,” especially in places that have had relaxed deadlines for years, state and big-city election officials told the court in a written filing. ...
On the other side, Justice Elena Kagan said the logic of the challenge to late-arriving ballots also would be used to rule out early voting and absentee ballots.
Limits on early-voting also seemed to bother Chief Justice John Roberts, who seemed the conservative member of the court most likely to side with Mississippi.
The court also grappled with whether state laws allowing for late-arriving ballots from military and overseas ballots could survive.
Reliance factors are the weakest form of argument, especially where courts haven't set precedents yet. If Mississippi and other states are violating the Constitution and federal law, the fact that they've done so for several years without challenge doesn't negate the violation. In those cases, it absolutely falls to the courts to determine validity or invalidity and to set precedents for states to follow in the future. Having this point cleared up by June or early July gives states plenty of time to inform voters that their ballots must be received by Election Day.
In fact, there's no functional difference in enforcing a deadline in either case, at least not for the state, unless the argument from the liberal wing is that there should be no deadline at all. Justice Neil Gorsuch pointed out that obvious issue by noting that states could easily set their deadlines into January, when the next session of Congress would be seated.
What about military ballots? Again, the issue here is the same – deadlines are being enforced. The choice of deadline does not meaningfully heighten the risk of disenfranchisement, if deadlines are to be enforced. Judge Oldman addressed this point in his Fifth Circuit ruling, pointing out as well that military voting has traditionally worked just fine with the Election Day deadline:
Early postwar iterations of absentee voting universally required receipt by Election Day. After the Civil War ended, most States eliminated field voting. See id. at 314–15 (cataloging expiration of wartime voting measures). By the time of World War I, however, many States had adopted a variety of absentee voting laws. Some states limited absentee voting to soldiers and further limited it to only wartime elections. P. Orman Ray, Military Absent Voting Laws, 12 Am. Pol. Sci. Rev. 461, 461–62 (1918). Nine States required voting on the day of the election, whether by proxy or by field voting. Id. at 464. New York’s law allowed commanding officers to set a date and account for military emergencies, but “in no case shall it be later than the day of the general or special election.” Ibid. Three States required ballots to be marked and submitted well before Election Day. Ibid. And West Virginia did not specify a date, so long as ballots were returned by mail “in time to be counted at home on election day.” Ibid. Thus, even during the height of wartime exigency, a ballot could be counted only if received by Election Day.
As for the concerns about impact on early-voting practices, that seems wildly overblown, too. In truth, same-day voting in person is a much safer and more effective practice than early voting, with limited exceptions for absentee ballots and the normal practice of military voting. Having a hard deadline for ballot submissions does not relate much to that argument, however. This case does not address the forms of voting, but only the final submission of ballots. If that isn't clear now in the arguments, the court's ruling on this appeal can certainly make that point explicit.
No one will be surprised when the court rules that "Election Day" means "day" in terms of time. The court appears poised to create that as a governing precedent in this case, whether on a 6-3 or 5-4 basis. The real question is why this common-sense conclusion will not likely get the same unanimity that it did at the Fifth Circuit.
🚨 BREAKING: The Supreme Court appears poised to STRIKE DOWN state laws allowing the mass acceptance of mail-in ballots after election day, following oral arguments — AP
— Eric Daugherty (@EricLDaugh) March 23, 2026
It could affect several DOZEN states.
THIS IS HUGE! 🔥
Justice Sam Alito delivered a MASTERCLASS in… pic.twitter.com/6vVbbPqNUT
