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Feb 28, 2026

Justices Seem Skeptical Of Allowing Ballots to Be Counted Days After Elections

A majority of U.S. Supreme Court justices appeared skeptical of state laws that allow the counting of ballots days and weeks after Election Day, based on the questions they asked during oral arguments on Monday.

One comment by Justice Samuel Alito seemed to resonate with most traditional constitutionalists on the high court when he said, “Independence DAY, birthDAY, and Election DAY. They are all particular DAYS. So if we start with that, if I have nothing more to look at than the phrase ‘Election Day,’ I think this is the DAY in which everything is going to take place.”

However, Justice Elena Kagan disagreed during the arguments, stating that Alito’s logic could also render early voting illegal. But the Republican National Committee countered that its lawsuit against Mississippi only targets the five-day post-election grace period to continue receiving ballots that were postmarked by election day.

“Several conservative justices raised concerns with allowing ballots to arrive after Election Day, including whether voters could recall ballots once they’ve shipped them but before they arrive at election offices. Justice Brett Kavanaugh questioned whether late-arriving ballots risk undermining election confidence,” Stateline reported.

“‘The longer after Election Day any significant changes in vote totals take place, the greater the risk that the losing side will cry the election has been stolen,’” Kavanaugh said as he quoted from an analysis by a New York University law professor.

Fox News added that 29 states have some form of a grace period to receive ballots after polls close on Election Day.

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