November 21, 2025 | Volume 33, Issue 3
This Report summarizes cases granted review on November 10 and 17, 2025 (Part I).
Cases Granted Review
Watson v. Republican National Committee, 24-1260.
The Court will consider “[w]hether the federal election-day statutes preempt a state law that allows ballots that are cast by federal election day to be received by election officials after that day.” Federal law sets the Tuesday after the first Monday in November as the “election” day. 2 U.S.C. §§1, 7; 3 U.S.C. §1. Mississippi requires mail-in absentee ballots for federal offices to be postmarked on or before election day, but allows those ballots to be counted if they are received by officials within five business days after the election. Miss. Code Ann. §23-15-637(1)(a). Respondents, the Republican National Committee and other groups, challenged Mississippi’s election laws in 2024 in federal district court, arguing that they are preempted by the federal election-day statutes which, they claim, mandates the closure of the ballot box on election day. The federal district court upheld Mississippi’s election laws. The Fifth Circuit reversed, holding that the federal “election” day “is the day by which ballots must be both cast by voters and received by state officials.” 120 F.4th 200.
Relying on Foster v. Love, 522 U.S. 67 (1997), the Fifth Circuit found first that, by requiring ballot casting but not ballot receipt by election officials by election day, Mississippi law lacks the “official action” that must occur on election day. The court found next that Mississippi law does not provide the “finality” that must occur on election day. And it found that under Mississippi law an election is not “consummated” on election day, as required by Foster. The Fifth Circuit found its conclusion supported by the history of absentee and mail-in voting: “For over a century after Congress established a uniform federal Election Day, States understood those statutes to mean . . . that ballots must be received no later than the first Tuesday after the first Monday in November.” The Fifth Circuit denied rehearing en banc by a 10-5 vote.
Mississippi argues that the Fifth Circuit’s holding contravenes the plain meaning of the term “election” and Supreme Court precedent. The state maintains that “[a]n election is the conclusive choice of an officer” and that voters make that choice by casting their ballots, whether that be in person or by dropping their absentee ballot in the mail on or before election day. Receipt of those ballot choices—while “critical to effectuating the voters’ choice”—is not inherently a part of the term. According to Mississippi, at that point, “[t]he election has then occurred, even if election officials do not receive all ballots by that day.” See Republican National Committee v. Democratic National Committee, 589 U.S. 423 (2020) (per curiam). In this way, Mississippi likens the receipt of ballots to the counting of ballots, which the Fifth Circuit determined was “one of the various post-election ‘administrative actions’ that can and do occur after Election Day.”
Noem v. Al Otro Lado, 25-5.
The Court will resolve whether an alien who is stopped on the Mexican side of the United States-Mexico border has “arrive[d] in the United States” within the meaning of the asylum provisions of the Immigration and Nationality Act, 8 U.S.C. §1101, et seq. Under 8 U.S.C. §1158(a)(1), an alien who “is physically present in the United States” or “arrives in the United States” may seek asylum. A person meeting either criterion is deemed an “applicant for admission” who must be “inspected by immigration officers.” Id. §§1225(a)(1) (defining an “applicant for admission”), 1225(a)(3) (requiring inspection).
In 2016, the Department of Homeland Security adopted a practice called “metering” to address overcrowding at ports of entry along the United States-Mexico border. Metering allowed Customs and Border Protection (CBP) officials to stop aliens lacking valid travel documents just before they crossed the border and prevent them from reaching United States soil. (In November 2021, the Biden Administration’s DHS rescinded the metering guidance.) Respondents Al Otro Lado, an immigrant rights organization, and 13 asylum seekers sued, claiming in relevant part that the Immigration and Nationality Act requires CBP to process asylum applications from, and to inspect, aliens who reach the Mexican side of the U.S.–Mexico border, and that CBP had unlawfully withheld that action. The district court granted summary judgment to respondents, finding that the metering policy unlawfully denied inspection and asylum processing to aliens physically present on the Mexico side of the border. The Ninth Circuit affirmed in relevant part. 138 F.4th 1102.
The Ninth Circuit interpreted the term “arrives in the United States” as encompassing “those who encounter officials at the border, whichever side of the border they are standing on.” It reached this conclusion by looking at the text of §1158(a)(1), which covers aliens who are either “physically present” or who “arrive[] in” the United States. In the court’s view, the phrase “arrives in” must have a meaning “that is not completely subsumed within the phrase ‘physically present in the United States,’’’ so “arrives in” should not be read to require physical presence. Addressing the government’s appeal to the presumption against extraterritoriality, the court concluded that the challenged conduct of stopping persons at a port of entry is “domestic,” so the presumption does not apply. The court also expressed a concern that a contrary reading of the statute would create a “perverse incentive to enter at an unlawful rather than a lawful location” because an alien who thinks they will be turned away at the border may be better off crossing the border surreptitiously and seeking asylum once present in the United States than waiting for admission through official channels.
In its petition, the United States argues that the Ninth Circuit’s construction is foreclosed by the plain text of §§1158 and 1225. In the government’s view, “arrives in” means “entering a specified location, not just coming close to it,” so an alien does not arrive in the United States until she enters its territorial limits. Bolstering this conclusion, the government says, is that Congress knows how to refer to persons near the border when it wants to: other sections of the Immigration and Nationality Act discuss arrival “near a land border,” but the relevant sections do not. The government argues that redundancies are relatively common in statutory drafting and the desire to avoid a redundancy here “cannot justify rewriting” the statute. The government further contends that the Ninth Circuit opinion creates line-drawing problems, as it is “wholly unclear how close to the border an alien must come to ‘arrive in’ the United States.” Finally, the government insists that even if the statute is ambiguous, the presumption against extraterritoriality requires courts to read the phrase “arrives in the United States” to exclude aliens who have not reached United States soil.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Joshua Lockett, Supreme Court Fellow
- Martha Ehlenbach, Supreme Court Fellow
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