Richard Bernstein: Federal Law Does Not Preempt A State from Counting Mail-in Ballots Postmarked by Election Day and Received After
Federal Law Does Not Preempt A State from Counting Mail-in Ballots Postmarked by Election Day and Received After
By: Richard Bernstein
Well before November 3, 2026, the federal courts should decide whether, in a federal election, the federal election day statutes preempt a state or D.C. from counting mail-in ballots that are postmarked by the federal election day, but received by a later deadline set by the state’s or D.C.’s statute. 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. Fifteen other states have statutes that count military and sometimes all overseas votes mailed by election day if received by a specified later date. I have revised the linked article to present it on October 22, 2025, at the Society for the Rule of Law’s annual conference.
The legal debate remains whether the federal election day statutes set a requirement for (a) by when voters must mail their choices versus (b) by when 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 and federal statutory provisions resolve the debate – election day is by when voters choose. Indeed, these provisions state that a federal election occurs when voters choose.
Start with presidential electors. Article II, Section 1, Clause 4 empowered Congress to set an election day as “the Time of chusing the Electors.” (All emphases are added.) Every subsequent federal statute that has set a time for the popular election of electors has implemented this constitutional provision. From 1792 until today in 3 U.S.C. § 3, the presidential election statutes have described the time when the election of presidential electors occurs as “the time of choosing electors.”
Turn to Senators. The Elections Clause itself –Article I, Section 4, Clause 1–states that “holding Elections for Senators” refers to “chusing Senators.” Article I, Section 3, Clause 3 connects the time of the election to this choosing by requiring that each Senator “when elected, be an Inhabit of that State for which he shall be chosen .” In turn, 2 U.S.C. § 1a states that “a Senator has been chosen” at an “election.”
The same applies to Representatives in the House. Article I, Section 2, Clause 1 states that Representatives are “chosen every second Year by the People.” Article I, Section 3, Clause 2 connects the time of the election to this choosing by requiring that each Representative “when elected, be an Inhabitant of that State in which he shall be chosen.” Accordingly, United States v. Classic, 313 U.S. 299 (1941), interpreted “Elections” in the Elections Clause, examined “the words of the Constitution in their historical setting,” id. at 317, 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 House election, is transplanted from “Elections” in the Elections Clause, and therefore must have the same meaning. 2 U.S.C. § 1 confirms this by stating that “at [an] election a Representative to Congress is regularly by law to be chosen.”
To elect is to choose. It simply cannot be argued that the states or state officials, rather than voters, choose Representatives, Senators, or presidential electors. The Constitution says the voters choose. Article I, Section 2, Clause 1 says representatives are “chosen … by the People.” The Seventeenth Amendment says Senators are “elected by the people.” Article II, Section 1, Clause 2 (the “Electors Clause”) says presidential electors are chosen “in such Manner as the Legislature [of the State] may direct,” and all states have enacted voting by the people as the manner of choosing electors. That is why our presidential elections satisfy “the trust of a Nation that here, We the People rule.” Chiafalo v. Washington, 591 U.S. 578, 597 (2020).
A state statute “in relation to … counting of votes … and making and publication of election returns” governs the “manner” of an election, not its time. Smiley v. Holm, 285 U.S. 355, 366 (1932). A state statutory deadline for when an election official receives a mail-in ballot postmarked by election day is one of the permissible “manner” deadlines governing the counting and announcing by election officials. Such a deadline merely cuts off the counting by officials of some timely-cast votes, so that officials may announce the final results sooner. Because an election official’s time of receipt is not part of the time of the election, no federal statute requires that an election official receive the ballot by election day.
What the federal election day statutes require is that voters submit their choices—that is, cast their votes—by election day. Mailing by a voter satisfies this. The federal election day statutes do not preempt the many other deadlines set by state law for aspects of the election process–including registration, application for absentee ballots, receipt by an official of mail-in ballots, counts, recounts, protests, and certification. The election day statutes leave the policy judgments as to when to set those deadlines to each state. The federal courts should not arrogate to themselves those policy judgments.
The full article is linked here.
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Richard Bernstein is a charter member of the Society for the Rule of Law and an appellate lawyer who clerked for the late Justice Antonin Scalia.