Mississippi law, like the law of many states, provides that as long as ballots are completed and mailed by Election Day, they should be counted if they are received shortly afterward. This ensures that absentee voters have the same deadline to vote as in-person voters, without being penalized because of delays in the mail. The Republican National Committee challenged Mississippi’s law, claiming that it violated the federal laws setting the date for elections for federal office. Though the district court upheld the law, the Fifth Circuit reversed. According to the Fifth Circuit, an “election” under federal law encompasses both the casting of votes and their receipt by officials—meaning ballots must be received by Election Day. Mississippi asked the Supreme Court to hear the case, and it agreed to do so.

CAC filed an amicus brief explaining why the Fifth Circuit’s interpretation is wrong and Mississippi’s law is lawful. Our amicus brief makes two principal points.

First, the text and history of the federal election laws establish that “election day” is the deadline for casting ballots—not for receiving them. The laws setting out the timing of federal elections follow in the tradition of the Constitution, which makes clear that when Congress sets an election day, it is setting only the date by which voters must indicate their choice of candidate. Article II of the Constitution provides that “Congress may determine the Time of chusing the Electors.” Congress sets the time of choosing, not the time of receiving, counting, or certifying those choices. Throughout the Constitution, “elections” are consistently treated as synonymous with “chusing”: Representatives are “chosen . . . by the People,” and when the House of Representatives selects a President, it “shall choose . . . by ballot.” And Founding-era dictionaries uniformly defined “election” as the act of choosing—not the receipt of choices by officials. The Supreme Court has confirmed this understanding, holding in United States v. Classic that an election occurs when voters express their choice of candidates.

Second, historical practice reinforces this reading. During the Civil War, when absentee voting first emerged at scale, states across the Union and Confederacy enacted soldier-voting laws that expressly contemplated ballots being received after Election Day. Multiple states established a grace period of several weeks after Election Day, far longer than Mississippi’s modern law allows. States passed laws directing that election judges delay counting ballots for several weeks to allow for soldiers’ ballots to be received. Congress enacted the first federal statute establishing a uniform day for congressional elections—just seven years after the Civil War ended—against the backdrop of these widespread state practices. In passing that law, Congress chose not to mandate same-day receipt of ballots.

The Fifth Circuit’s decision should be reversed. Federal law sets the day by which votes must be cast, not the day by which they must be received.