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Voting by mail is a critical part of our democracy. In the 2024 elections, 1 in 3 Americans submitted mail ballots, taking advantage of a simple, safe, and secure way to exercise their fundamental right to vote without having to endure crushingly long lines or travel great distances to a polling place. But despite its popularity, voting by mail is under concerted attack.

President Donald Trump rails against the practice every chance he gets. His executive order on elections, enjoined by multiple courts as an unlawful power grab, seeks to coerce states to roll back voter-friendly state laws permitting post–Election Day receipt of ballots mailed on time. And that is only one piece of the conservative attack on voting by mail. Another is currently before the Supreme Court.

On March 23, the court will consider a lawsuit brought by the Republican National Committee challenging a Mississippi law that permits counting mail ballots postmarked by Election Day if received by state election officials within five business days. The case, Watson v. Republican National Committee, threatens to upend the laws of 29 states and the District of Columbia that permit post–Election Day receipt of mailed ballots.

Watson turns on the meaning of the three federal laws that establish Election Day for federal elections. Under federal law, “the Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election” to the House of Representatives. Likewise, the day when “a Representative to Congress is regularly by law to be chosen” is the day when “a United States Senator from said State shall be elected by the people thereof.” Finally, for presidential elections, Congress has mandated that “the electors of President and Vice President shall be appointed, in each State, on election day, in accordance with the laws of the State enacted prior to election day.”

These statutes specify when voters must act—the day when, in the language of the Constitution, a candidate for public office is “chosen … by the People”—but they are utterly silent about the timing of state processes that occur after votes have been cast, whether at the polls or through the mail. As a result, states now, as they have throughout American history, possess broad authority to regulate when ballots must be received, as well as how ballots will be counted and a winner certified.

But in a stunning perversion of textualism and principles of federalism, an ultraconservative panel of the 5th Circuit, the nation’s most conservative federal appeals court, invalidated Mississippi’s law, insisting that federal law forbids the counting of absentee ballots postmarked by Election Day but received afterward. The 5th Circuit’s ruling, written by Trump-appointed Judge Andrew Oldham and joined by two other Trump-appointed judges, effectively rewrote federal law, arrogated the long-standing authority of states to regulate the counting of votes, made it harder for voters to cast absentee ballots and have them be counted, and sowed chaos in the electoral process. The circuit court’s rule—with no basis in statutory text—would license mass disenfranchisement of absentee voters simply because the post office took too much time to deliver a ballot. It would deprive states of the authority to provide an orderly process that ensures that all votes cast on or by Election Day are properly counted.

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In reaching this decision, the 5th Circuit not only made a hash of federal law, but it also ignored the lengthy and fascinating Civil War–era history of state legislatures acting to protect the right to vote by permitting post–Election Day receipt of ballots—laws well known to Congress when it enacted the first statute establishing a uniform day for congressional elections in 1872. As the amicus brief the Constitutional Accountability Center filed in Watson recounts, during the Civil War, states across the country enacted a spate of laws to protect the voting rights of soldiers fighting far from their home states. To prevent disenfranchisement, many states enacted laws that permitted soldiers to vote under the supervision of commanding officers, who would then transmit ballots to election officials back home. Given the great distance ballots would have to travel and the likelihood of delay in the chaos of wartime, states wrote into their laws grace periods for ballots to be received by state election authorities to guarantee that all votes cast were properly counted and the rightful winner certified.

In Rhode Island, for example, an 1864 state constitutional amendment recognized that soldiers “in time of war” who were “absent from the state in the actual military service of the United States” retained “a right to vote” and sought to protect that right by permitting the ballots of soldiers to be received by state authorities “within the time prescribed by law for the counting of votes.” Ballots received by the deadline “shall be received and counted with the same effect as if given by such elector in open town, ward, or district meeting.” An 1864 Pennsylvania law established a similar scheme, providing for the mailing of military ballots and requiring state election officials to meet “on the third Friday, after any general or presidential election, for the purpose of counting the soldiers’ vote.”

A number of Southern and border states—whether they remained in the Union or seceded—provided explicit grace periods requiring state officials to wait for weeks to ensure that military voters were not disenfranchised by the delay in the receipt of their ballots. In the Union state of Maryland, for example, an 1864 constitutional provision required the governor to “wait for fifteen days after the day on which the State vote is taken, so as to allow the returns of the soldiers’ vote to be made before the result of the whole vote is announced.” In the confederacy, Georgia enacted a similar 15-day grace period, while Florida law provided an extra 20 days.

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The 5th Circuit willfully ignored this history, and the briefs filed by the RNC and the Trump administration’s solicitor general urging the justices to strike down the Mississippi law share the same flaw. In a pattern we’ve seen all too often, conservative litigants are seeking to move the law far to the right based on a fundamentally false historical narrative. The justices should not buy it. The historical record in Watson is clear and overwhelming: It shows that the Mississippi law permitting post–Election Day receipt of mail ballots has deep roots in our nation’s history and the law of democracy. As the history of absentee voting during the Civil War era shows, states have long permitted post–Election Day receipt of absentee ballots to safeguard voting rights and protect our foundational democratic principles.

In recent years, the 5th Circuit has issued a series of radical rulings on guns, abortion medication, separation of powers, and other contentious issues, repeatedly being rebuked by the Supreme Court, often by unanimous or lopsided votes. The circuit court’s decision striking down the Mississippi law permitting post–Election Day receipt of mail ballots deserves a similar fate. The ruling butchers statutory text, ignores long-standing historical practice, and violates principles of federalism. No one should be under any illusion about where the right wing of the Roberts court stands on the protection of voting rights, but the court’s conservative justices should have a hard time swallowing arguments that violate so many pillars of legal reasoning.

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