Sign up for Executive Dysfunction, a weekly newsletter that surfaces under-the-radar stories about what Trump is doing to the law—and how the law is pushing back.
For a long time, Americans believed that Election Day was simple. Polls opened in the morning. Ballots were cast. By nightfall, the country would begin to learn the outcome. Federal law seemed to reinforce that intuition. For more than a century, Congress has required that federal elections occur on “the Tuesday next after the first Monday in November.”
Watson v. RNC, now before the Supreme Court, asks whether that familiar rule might quietly disenfranchise thousands of voters.
The dispute arises from Mississippi’s practice of counting absentee ballots that arrive several days after Election Day so long as they were mailed on time, a method similar to that of dozens of states across the country. Challengers argue that federal law does not allow such flexibility. Congress established a single day for federal elections, they say, and ballots must therefore be received by that day. The 5th Circuit agreed, concluding that Mississippi’s rule conflicts with federal statutes governing the timing of federal elections.
At first glance, the argument sounds technical. In reality, the case raises a much more significant question about the structure of American democracy and who ultimately controls its rules. Critically, it has frightening echoes to a number of recent voting cases before the court, including a major one in which the justices rejected the same intellectual impulse that has been revived in Watson.
To see why, it is important to understand what Congress was trying to accomplish when it created a uniform Election Day. In the early 19th century, states often held elections weeks apart. That practice created obvious opportunities for political manipulation. Voters in later-voting states could react to results from earlier contests. Congress intervened in 1845 to establish a single national election date—a rule later extended to congressional elections—so that federal elections would occur simultaneously across the country.
Properly understood, the goal was coordination, not micromanagement. Voting in that era occurred almost entirely in person. Ballots were cast at polling places and immediately collected by election officials.
Modern election administration looks very different. Millions of Americans now vote by mail. Ballots may be mailed days before Election Day and received afterward. Postal delays, natural disasters, and other logistical realities sometimes slow the delivery of ballots that voters mailed on time.
States have responded to these realities in different ways. Some require ballots to arrive by Election Day. Others accept ballots that arrive a few days later if they were postmarked before the deadline. These rules reflect pragmatic judgments about access, reliability, and the realities of modern voting systems.
The litigation now before the court seeks to replace those practical decisions with a single rigid rule.
The consequences of such a rule would reach far beyond Mississippi. Many states allow ballots from military and overseas voters to arrive after Election Day so long as they were mailed before the deadline. Postal delays can affect ballots mailed by elderly voters, rural voters, or voters who lack reliable transportation to polling places. If federal law requires strict receipt by Election Day, those ballots could be discarded even though eligible voters complied fully with state law.
This dispute also arrives at a moment when the Supreme Court continues to grapple with deeper questions about who controls election rules.
Only a few years ago, the justices confronted the “independent state legislature” theory in Moore v. Harper. That theory argued that the Constitution gives state legislatures near-exclusive authority over federal elections. In its most aggressive form, the theory would have sharply limited the role of state courts in reviewing legislative election rules under state constitutions.
The Supreme Court rejected that sweeping claim. Yet the intellectual impulse behind it has not disappeared. Instead, it has resurfaced in more targeted disputes about statutory interpretation and federal preemption. The connection between that earlier theory and the present case is structural rather than doctrinal. The independent-state-legislature theory sought to free state legislatures from traditional checks by limiting the role of state courts. The argument now before the justices pursues a different path toward a similar result. It would strip states of long-standing administrative flexibility by transforming 19th-century federal statutes into rigid nationwide rules governing ballot receipt. Both approaches narrow the range of institutions that can shape election administration. Both concentrate authority over elections into fewer hands. And both risk pushing the law toward technical rules that operate to the detriment of voters themselves.
Understanding that dynamic helps explain why it is essential to distinguish the present dispute from cases in which courts are being asked to intervene to protect democratic participation.
Consider the issue currently before the Supreme Court in Callais v. Louisiana. That case concerns whether Louisiana’s congressional map unlawfully dilutes Black voting power in violation of the Voting Rights Act. There, the judiciary is being asked to perform the familiar and necessary function of interpreting a federal civil rights statute enacted specifically to guard against racial discrimination in voting and of enforcing federal protections designed to ensure equal political participation.
Like in other similar cases, in Callais, the court confronts allegations that state laws restrict voting rights. Judicial intervention in such circumstances protects democratic participation rather than narrowing it.
The Mississippi dispute, on the other hand, presents the opposite situation. The challenged rule was designed to ensure that voters who mail their ballots on time are not disenfranchised by postal delays beyond their control. The litigation asks the court to invalidate that rule in the name of a rigid interpretation of federal statutes enacted nearly two centuries ago.
My own experience watching these debates unfold has underscored how quickly abstract legal theories can translate into concrete consequences for voters. During my clerkship at the North Carolina Supreme Court, I was present when the court issued the decision that ultimately became the basis for the U.S. Supreme Court’s review in Moore v. Harper. Later, while working at the Brennan Center for Justice on election administration and voting rights issues, I assisted with research examining the independent-state-legislature theory as it moved toward the court.
Those experiences made clear how rapidly theoretical arguments about constitutional structure can reshape the mechanics of elections. What begins as a debate about statutory text or constitutional interpretation can end by determining whether thousands of ballots are counted or discarded. We would all be fortunate if the court were to ultimately approach the present case with that reality firmly in mind.
Congress unquestionably possesses the authority to impose nationwide rules governing federal elections. When it chooses to exercise that power, however, it speaks clearly. The Election Day statutes were enacted to ensure that federal elections occur simultaneously across the country. They were not written to regulate the timing of ballot receipt in a modern voting system that did not yet exist. Transforming those statutes into rigid ballot-receipt deadlines would stretch them far beyond their historical purpose.
It would also invite a new wave of litigation focused not on protecting voting rights but on narrowing them through technical interpretations of federal law. Election administration would increasingly be shaped by judicial rulings rather than by the practical judgments of state officials responsible for running elections.
In an era when public trust in elections is already fragile, that shift would shrink opportunities to vote while concentrating the power to decide which votes count into an ever-smaller set of hands. It would revive an approach the Supreme Court only recently resisted at the expense of the voters it would be claiming to protect.