Extended Absentee Ballot Receipt Deadlines: A Review of Two Briefs Submitted to the U.S. Supreme Court
For over 100 years, U.S. voters have enjoyed the option to cast their ballots by mail. The practice began with soldiers in the battlefield as early as the Civil War. Over the decades, it became increasingly common practice for states to extend special voting accommodations to military members away from home who were faced with uniquely difficult challenges to cast their ballot and have it arrive back to their election office in time for counting. One of these accommodations was for ballots cast by the state deadline to allow ballot counting to continue after Election Day.
States are in charge of administering elections, therefore, these extended ballot receipt deadlines, or “grace periods” as some may call them, continue to be decided by each state, respectively. Their implementation allows for more voters’ timely-cast ballots to be counted.
Over time, extended ballot receipt deadlines for overseas and military voters have become a widely adopted practice implemented by up to 29 states. The extension of ballot receipt deadlines was acknowledged in the landmark Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) of 1986 as a optional policy decided by the states.
As an organization with a history founded on providing absentee ballot and related voting services to overseas U.S. citizens and military members and their families, U.S. Vote Foundation (US Vote) and our Overseas Vote initiative believe that the extended ballot receipt deadlines afforded to these voters is an election administration practice that is essential and should not be lost.
Unfortunately, the Mississippi case to be deliberated in the Supreme Court in March 2026 threatens the existence of extended ballot receipt deadlines.
SCOTUS Case Watson v. RNC
In 2024, the Republican National Committee challenged a Mississippi statute that allowed absentee ballots to be received up to five days after a federal Election Day. If cast by Election Day, those ballots would still be counted. The case went before the United States District Court for the Southern District of Mississippi. They ruled in favor of the defendant, that Mississippi’s statute allowing for the 5-day grace period did not conflict with federal law, and it was therefore allowed to continue.
But the story did not end there. The District Court’s decision was appealed to the Fifth Circuit Court of Appeals, which then reviewed the case and reversed the judgment. The Fifth Circuit Court ruled that federal law mandates that all ballots must be both cast and received by Election Day in order to be counted. The court’s reversal triggered a nationwide uproar.
The ruling implied that Election Day is one day and thereby inferred that all activity surrounding ballots must be completed by that day. For a nation comprised of 50 states that run their elections according to their own rules, this is inconceivable. Many states do not even begin to count absentee ballots until Election Day and very often the counting goes on for days and/or weeks.
Election advocates maintain that the implications of Election Day being one day and one day only when certain election activity can occur is that this sort of a ruling would cause unmitigated upheaval of our current election system. One thing is for sure, disallowing the extended ballot receipt accommodations would mean that fewer timely-cast ballots would be counted.
But again, it did not end there. The Fifth Circuit court’s decision was appealed to the highest court in the land. The case, dubbed Watson v. RNC is set to be evaluated by the United States Supreme Court in early 2026.
Spotlight on Two Friend of the Court Briefs
Of particular interest, especially to readers who are interested in overseas and military voting, we call your attention to two Friend of the Court “Amicus Briefs” submitted to the Supreme Court for this case. These were brought by The Brennan Center for Justice and by the National Defense Committee, two organizations, who despite their ideological distance on many issues, are entirely united in their points of view on this crucial case.
While they discuss different points, the two briefs focus exclusively on how this decision will affect overseas and military voters, and they reach the same conclusion: that the ruling of the Fifth Circuit Court of Appeals should be reversed and the laws as they are should stand.
The “friends” or “amici” of the first brief, which we will call the "Brennan Brief," “Michael Watson, Mississippi Secretary of State, Petitioner, v. Republican National Committee, et al, Respondents. On Writ of Certiorari from the United States Court of Appeals for the Fifth Circuit. Brief of Amici Curiae Individuals and Organizations Representing Military and Overseas Voters in Support of Petitioner. No. 24-1260,” comprise more than four dozen former secretaries of the Army, Navy, and Air Force, retired four-star generals, admirals, and retired senior U.S. diplomats, as well as, eight non-partisan, non-profit, organizations that represent current and former United States military service members, including U.S. Vote Foundation*, military families, and overseas voters. This brief discusses the hardships of voting as a member of the military or as a citizen abroad – registering to vote, requesting and receiving a ballot, and submitting a ballot.
“…despite widespread recognition of military and overseas citizens’ fundamental right to vote and numerous state- and federal-led initiatives to facilitate their access to the franchise, many of them continue to face daunting barriers to voting.”1
The second brief, was drafted by the amicus, the National Defense Committee. and we will call it the “NDC Brief.”** Officially titled, “Michael Watson, Mississippi Secretary of State, Petitioner, v. Republican National Committee Et Al., On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit. Brief of Amicus Curiae National Defense Committee Supporting Petitioner. No. 24-1260,” it discusses states’ efforts to assist overseas and military voters and how Congress has not passed legislation contradicting UOCAVA or other voting acts, despite its ability to do so derived from the Elections Clause.
The NDC Brief reminds us that the practice of accepting a ballot that was cast prior to Election Day, but received afterwards, officially began with the laws of six Union states during the Civil War. The six states gave military voters until the deadline for canvassing in-state ballots to have their votes received by election officials. States allowing ballots to arrive after Election Day actually began during the War of 1812 with Pennsylvania and New Jersey. They created laws to allow military members to vote from the field and have their ballots accepted after Election Day. To this day, Congress has always sided with the states’ and has upheld their ability to establish and enforce these “grace period” laws.
“The statutory text of [the Uniformed and Overseas Citizens Absentee Voting Act] UOCAVA thus “accurately communicates” Congress’s intent not to preempt state’ authority under the Elections Clause to adopt grace periods.”1
Clearly outlined in the NDC Brief is the usage of absentee ballots by military members across military conflicts throughout modern American history. It argues that court precedence has repeatedly ruled on behalf of those serving in the military, indicating that statutes must be interpreted liberally in their favor, not narrowly to create losses based on technicalities. This conclusion was derived from the ruling in Fishgold v Sullivan Drydock & Repair Corp in 1946. In 1943, Boone vs Lightner ruled that “Legislation is to be liberally construed for the benefit of those who left private life to serve their country.”
In 1986, UOCAVA was signed into law. This law covers members of the military, their family members, and citizens of the United States living abroad. In 2010, the Military and Overseas Voter Empowerment (MOVE) Act amended UOCAVA and augmented absentee ballot privileges for “UOCAVA” voters. One article of the MOVE Act states that election officials must, “transmit validly requested absentee ballots to UOCAVA voters no later than 45 days before an election for a federal office, when the request has been received by that date.”
“Counting absentee ballots that are lawfully cast by Election Day but received after that date due to ordinary administrative or mail delays does not extend the election beyond the federal day; it merely completes the tabulation of votes cast as part of that election.”2
“When states have failed to make sure that ballots are sent to qualified UOCAVA protected voters in a timely manner, the Department of Justice has successfully obtained court orders and consent decrees. Many of these have required states to extend their deadlines for receiving these ballots and to count such ballots, even when they arrived after Election Day.” The NDC brief also argues that several court cases have ruled in favor of allowing votes to be counted when cast prior to Election Day, but received afterward and that curtailing the practice would go against court precedence.
The Brennan Brief, “Organizations Representing Military and Overseas Voters in Support of Petitioner,” focuses on how the federal government does not deviate from the states’ opinion on absentee ballot grace periods, while the NDC “Amicus Curiae National Defense Committee Supporting Petitioner” brief relies heavily on the history and implementation of UOCAVA. While these are diverse notions, the conclusions of both briefs request the Supreme Court to reverse the judgment of the Fifth Circuit Court of Appeals to allow the continuation of ballot grace periods and to cast out the “Election Day” implications of that court.
Keep an eye on the SCOTUS case, Watson vs. RNC, here.
U.S. Vote Foundation, together with its Overseas Vote initiative, has a long history and commitment to UOCAVA and absentee voting in general. Most recently, US Vote published a press release on defending the practice of voting by mail. The document argues that absentee voting is well-established, secure, and reliable. It is the backbone of safe voting for our military and overseas citizens. Because voting by mail has proven to be so reliable, US Vote has argued for all states to allow, not only UOCAVA voters, but all citizens to vote by this method without an excuse. By way of another press release, the organization requests that Congress remove any and all barriers to vote-by-mail for all elections including primaries, special, runoff, and general elections.
* US Vote is a participant in the Brennan brief because the organization understands the hardships military and overseas voters face when casting their ballots. US Vote believes extended ballot receipt deadlines for timely-cast ballots are a proven way to assist the UOCAVA population in having their voices heard.
**Samuel F. Wright, co-author of the NDC Brief, is an advisor to U.S. Vote Foundation.