Cite as: 609 U. S. ____ (2026)
3
ALITO, J., dissenting
Mississippi law allows some voters to cast absentee ballots, Miss. Code Ann. §23–15–713 (Cum. Supp. 2025), and
provides that voters may submit these ballots to election
officials by mail or common carrier, §23–15–637(1)(a). To
be counted, absentee ballots must be postmarked by election day, and state officials must receive them no later than
five days “after the election.” Ibid. Ballots arriving after
that date “shall not be counted.” Ibid. The question we
must decide is whether the provision allowing receipt of absentee votes after election day is consistent with federal
law.
II
A
As noted, the federal election-day statutes provide that
elections for federal office must occur on a specified date,
“the Tuesday next after the first Monday in November.”
This may seem like a simple rule, but we must address several issues to understand exactly what it means. The first
is the meaning of the term “election” as used in the electionday statutes. The majority states that the term “election”
means “the expression of the electorate’s choice,” ante, at 7,
and I agree with that definition.
The second issue is the identification of the acts that constitute the electorate’s expression of its choice, and those
acts are the final submission and collection of ballots.
These acts must therefore occur on election day.
That is what the election-day statutes required when all
voting occurred in person, and the same requirement applies today. Back when all voting occurred in person, the
voters went to the polls on election day. They then completed ballots and turned them over to election officials.
When the polls closed, those officials had in their possession
a fixed collection of ballots, and taken together, those ballots embodied the electorate’s collective choice. That expression of the electorate’s choice having been made, the
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