Judicial Watch has teamed up with the Libertarian Party of Mississippi to oppose the state’s attempt to resurrect a law allowing ballots to be counted days after election day.
The case is now sitting before the U.S. Supreme Court after the Fifth Circuit Court of Appeals struck down Mississippi’s law permitting absentee ballots to be received up to five business days after Election Day.
In its ruling, the Fifth Circuit Court of Appeals found:
Congress statutorily designated a singular “day for the election” of members of Congress and the appointment of presidential electors. 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. Because Mississippi’s statute allows ballot receipt up to five days after the federal election day, it is preempted by federal law. We reverse the district court’s contrary judgment and remand for further proceedings.
BREAKING: On behalf of the Libertarian Party of Mississippi, Judicial Watch filed a brief with SCOTUS that opposes the State of Mississippi’s attempt to overturn the U.S. Court of Appeals for the Fifth Circuit’s decision, which struck down a law allowing ballots received after… pic.twitter.com/Nh1JJ4cMzM
— Judicial Watch
(@JudicialWatch) August 12, 2025
According to the brief filed by Judicial Watch, the Founders and every Congress since 1845 understood “Election Day” to mean a single, uniform day when the ballot box is closed and no new votes can trickle in.
The Fifth Circuit agreed, warning that extending ballot deadlines invites the very problems Congress sought to prevent: fraud, uncertainty, and endless litigation over late-arriving votes.
Judicial Watch blasted Mississippi’s claim that mailing a ballot before Election Day is enough, pointing out that until a ballot is actually received by election officials, it can be delayed, destroyed, or even recalled by the voter.
“Counting ballots received after Election Day is a flagrant violation of federal law and encourages fraud and voter distrust,” said Judicial Watch President Tom Fitton.
“Let us hope that the Supreme Court will decline to hear Mississippi’s senseless attempt to overturn a historic decision that sensibly concluded that counting ballots received after Election Day is unlawful.”
More from Judicial Watch:
Judicial Watch initially filed the civil rights lawsuit in February 2024 on behalf of the Libertarian Party of Mississippi, challenging the same Mississippi election law permitting absentee ballots to be received as long as five business days after Election Day. The suit was consolidated with one filed by the Republican National Committee, the Mississippi Republican Party, and other complainants.
In March 2025, the Fifth Circuit declined to rehear its previous ruling, in which it agreed with Judicial Watch that it was unlawful for Mississippi to count ballots that arrived after Election Day. The full Circuit declined to hear the case by a vote of 5 to 10.
Judicial Watch’s brief recounts:
In reversing the district court on the merits, the [Fifth Circuit] panel faithfully followed this Court’s precedent … [T]his Court found that the Election Day statutes preempted a Louisiana law that allowed congressional candidates to be elected in October…. In interpreting the meaning of “day of the election” within the Election Day statutes, this Court found that “[w]hen the federal statutes speak of ‘the election’ of a Senator or Representative, they plainly refer to the combined actions of voters and officials meant to make a final selection of an officeholder.” … Accordingly, the “day of the election” “may not be consummated prior to federal election day.”
On July 22, Judicial Watch filed its opening brief to the Supreme Court in a case filed on behalf of Congressman Mike Bost and two presidential electors, who are before the court to vindicate their standing to challenge an Illinois law extending Election Day for 14 days beyond the date established by federal law (Rep. Michael J. Bost, Laura Pollastrini, and Susan Sweeney v. The Illinois State Board of Elections and Bernadette Matthews (No. 1:22-cv-02754, 23-2644, 24-568)). Initially filed in May 2022, this was the first challenge seeking to require all ballots be received by Election Day.
In March 2025, Judicial Watch filed a federal lawsuit against California on behalf of U.S. Rep. Darrell Issa to prevent state election officials from extending Election Day for seven days beyond the date established by federal law. California counts ballots received up to seven days after Election Day (Darrell Issa v. Shirley N. Weber, in her official capacity (No. 3:25-cv-00598)).
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