Judicial Watch Urges Supreme Court to Keep Fifth Circuit Ban on Counting Ballots Received After Election Day

(Washington, DC) – Judicial Watch announced today that, on behalf of the Libertarian Party of Mississippi, it filed a brief to the Supreme Court of the United States 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 Election Day to be counted (Michael Watson, Mississippi Secretary of State v. Republican National Committee, et al.,(No. 24-1260)).

The October 25, 2024, Fifth Circuit appellate opinion 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.

The Judicial Watch brief argues that the Supreme Court should refuse to review the Fifth Circuit ruling:

[T]he Court of Appeals correctly applied existing Court precedent to find that the Receipt Deadline is inconsistent and conflicts with the Election Day statutes, and is preempted by them. Petitioner [MS secretary of state] has not demonstrated any reason why the Court’s intervention is needed now. Modification of the Election Day receipt deadline allows states to “engage in gamesmanship, experiment with deadlines, and renew the very ills Congress sought to eliminate: fraud, uncertainty, and delay.”

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)).

“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.”

Judicial Watch is a national leader in voting integrity and voting rights. As part of its work, Judicial Watch assembled a team of highly experienced voting rights attorneys who stopped discriminatory elections in Hawaii, and cleaned up voter rolls in California, Ohio, Indiana, and Kentucky, among other achievements.

Other examples of Judicial Watch’s election law work include:

Earlier this month, a federal court ruled that Judicial Watch’s lawsuit filed on behalf of itself, the Constitution Party of Oregon, and two registered voters to force the cleanup of Oregon’s voter rolls may proceed (Judicial Watch, et al. v. The State of Oregon et al. (No. 6:24-cv-01783)).

In July 2025, federal courts in California and Illinois separately ruled that Judicial Watch lawsuits may proceed against those states to force them to clean up their voter rolls.

Judicial Watch announced in May that its work led to the removal of more than five million ineligible names from voter rolls nationwide.

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