Richard Bernstein has posted this draft article. From the summary:
Perhaps the legal issue that will affect the most votes in upcoming federal elections is whether, in a federal election, a statute of a state or D.C. may permit the counting of mail-in ballots that are postmarked by the federal election day – November 3 in 2026 – but received by a later deadline set by the state or D.C. statute. The Supreme Court is currently considering whether to decide this issue in Watson v. Republican National Committee, No. 24-1260 (“Watson”), a case involving Mississippi’s statute. Even if the Supreme Court declines to decide this issue in Watson, this issue is also pending in the lower federal courts as part of the challenges to President Trump’s Executive Order 14248, which purports to bar counting mail-in ballots postmarked by but received after election day. One federal district court has struck down that portion of the Executive Order, but that ruling is on appeal. See California v. Trump, 2025 WL 1667949, at *13 (D. Mass June 13, 2025), appeal pending, No. 25-1726 (1st Cir. Aug. 1, 2025).
Fifteen states and D.C. have statutes that count mail-in ballots if they are postmarked by election day and received by a specified later date. See Response of Vote Vet Foundation, at 5 & n.2, filed July 10, 2025, in Watson. Fifteen other states have statutes that count military and sometimes all overseas votes mailed by election day if received by a specified later date. Id. at 5 & n.3.
Everyone agrees that election day means the same thing for presidential elections as for congressional elections. The legal debate is between whether the federal election day statutes set a requirement for (a) by when voters must mail their choices versus (b) by when the state election officials must receive the mailed ballots. So, by when voters choose versus by when election officials receive. The linked article demonstrates that the text and history of the pertinent constitutional provisions and federal election day statutes resolve the debate – election day is by when voters choose.
The Constitution is the place to start because Article II, Section 1, Clause 4 empowered Congress to set “the Time of chusing the Electors.” (Emphasis added.) Every subsequent federal statute that has set a time for popular voting for president has implemented this constitutional provision. Indeed, the first presidential election statute, enacted in 1792, described when “electors shall be appointed” as “the time of choosing electors.” 1 Stat. 239. The phrase “the time of choosing electors” has remained in the governing federal statutes continuously until today, now codified in 3 U.S.C. § 3.
In 1845, the first federal election day statute to set a single day did so for “an election for the purpose of choosing the [presidential] electors.” 5 Stat. 721 (emphasis added). This continued to reflect the understanding that in each state where electors are “appointed,” id., by a popular election, the election happens by when “the electors are chosen … by the people.” 3 J. Story, Commentaries on the Constitution § 1466 (1833) (emphasis added).
Foster v. Love held that the congressional election day statute first enacted in 1872 must be interpreted to align with the earlier 1845 presidential election day statute. 522 U.S. 67, 70, 73-74 (1997). Therefore, election day for congressional elections must also be the day by when voters choose.
Independently, the text of Article I, Section 1 of the Constitution compels the same result. Article I, Section 2, Clause 1, requires members of the House to be “chosen every second Year by the People.” (Emphasis added.) And Article I, Section 3, Clause 1 required that Senators be “chosen by the Legislature.” (Emphasis added.) The Seventeenth Amendment now requires Senators to be “elected by the people.” (Emphasis added.) Accordingly, when United States v. Classic, 313 U.S. 299 (1941), interpreted “elections” in Clause 1 of Section 4 of Article I (the “Elections Clause”), the Court examined “the words of the Constitution in their historical setting,” id. at 317 (emphasis added), and concluded that: “From time immemorial an election to public office has been in point of substance no more or no less than the expression by qualified electors [voters] of their choice of candidates.” Id. at 318 (emphasis added).
The word “election” in 2 U.S.C. § 7, which sets the day of a congressional election, is transplanted from “Elections” in the Elections Clause. Therefore, the holding in Classic that “election” under the Elections Clause means voter “choice” rebuts the argument that “election” in 2 U.S.C. § 7 instead means the “State’s process.” Republican National Committee Opposition at 20, filed Aug. 11, 2025, in Watson.
In our Nation, all the choosing in a federal election is done by voters. That is why our federal elections satisfy “the trust of a Nation that here, We the People rule.” Chiafalo v. Washington, 591 U.S. 578, 597 (2020). To elect is to choose, and election officials do not choose. Rather, they count votes and announce results.
The counting and announcing by election officials, everyone agrees, need not occur within the time for the election itself. A deadline for when election officials receive a mail-in ballot postmarked by election day is one of the deadlines governing their counting and announcing. Such a deadline merely cuts off the counting by election officials of some timely-cast votes, so that officials may announce the final results sooner. In sum, because an election official’s time of receipt of a timely-sent mail-in ballot is not part of the choosing by voters, it is not part of the time of the election – and therefore no federal statute requires that an election official receive the ballot by election day.