The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.
The Supreme Court is meeting in conference this Friday for the first time in three weeks. A lot of cases have built up during that time – 263 to be precise, almost twice as many cases as were at the last October conference. Only one of those cases has been relisted for the first time, though: Watson v. Republican National Committee, which asks the justices to decide what “election day” (or “the day for the election”) means.
In Watson, Mississippi Secretary of State Michael Watson seeks review of a decision by the U.S. Court of Appeals for the 5th Circuit striking down the state’s law that lets it count absentee ballots postmarked by election day if they arrive up to five business days later. The 5th Circuit ruled that the statute was superseded by federal law, which it read to require that all ballots be both cast and received by the Tuesday after the first Monday in November. Five judges dissented from the full court’s failure to rehear the case, saying the issue was of “exceptional importance.”
Watson argues that the federal statutes – 2 U.S.C. §§ 1 and 7 and 3 U.S.C. § 1, which govern elections for the Senate, House of Representatives, and presidential electors, respectively – establish only the date by which voters make their choice, not the date officials must receive the ballots, and that Mississippi merely allows ballots cast by Election Day to arrive a little late. Watson warns that the ruling would invalidate similar grace-period rules in about 30 states and sow chaos ahead of 2026. Watson is supported by groups of voters that intervened in support of the law and by , who argue that the 5th Circuit’s interpretation threatens longstanding state autonomy and the ability of overseas and military voters to have their ballots counted.
Recommended Citation: John Elwood, The meaning of “election day”, SCOTUSblog (Nov. 5, 2025, 8:37 AM), https://www.scotusblog.com/2025/11/the-meaning-of-election-day/
On the other side, the Republican National Committee (and its state affiliate) and the Libertarian Party of Mississippi defend the 5th Circuit’s bright-line rule, arguing that uniform national timing is what Congress demanded when it decreed a single election day “throughout the Union.” In their telling, allowing ballots to trickle in after Tuesday undermines finality and invites the type of “chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election” that Justice Kavanaugh once worried about. They lean on the 1997 case of Foster v. Love, in which the court unanimously held that Louisiana’s open primary, which effectively chose officeholders before November, violated the same statutes.
The case has all the makings of a pre-election blockbuster: plain-text statutory arguments, competing appeals to history, and the prospect of upending established mail-ballot rules in many states. With Bost v. Illinois Board of Elections already on the court’s docket raising a related question of candidates’ standing to challenge such laws, Watson looks like a strong candidate for review.
Issue: Whether the federal election-day statutes, 2 U.S.C. § 7, 2 U.S.C. § 1, and 3 U.S.C. § 1, preempt a state law that allows ballots that are cast by federal election day to be received by election officials after that day.
Issue: Whether a state or local official who moves to terminate prospective relief under 18 U.S.C. § 3626(b)(1)(A) bears any affirmative burden beyond demonstrating that the requisite amount of time has passed.
(Relisted after the Sept. 29, Oct. 10, and Oct. 17 conferences.)
Issues: (1) Whether compliance with state laws directly contrary to Title VII of the Civil Rights Act of 1964’s requirement to provide a reasonable accommodation for religious beliefs may serve as an undue hardship justifying an employer’s noncompliance with Title VII; and (2) whether a state law that requires employers to deny without any consideration all requests by employees for a religious accommodation, contrary to Title VII’s religious nondiscrimination provision, is preempted by Title VII and the Supremacy Clause of the Constitution.
(Relisted after the Sept. 29, Oct. 10, and Oct. 17 conferences.)
Issues: (1) Whether Feres v. United States‘ bar against a servicemember’s ability to bring tort claims “incident to service” is only triggered when the injury was directly caused by the servicemember’s military duties or orders; and (2) whether the court should limit or overrule Feres because its limitation on servicemembers has no basis in the Federal Tort Claims Act‘s text and is unworkable.
(Relisted after the Sept. 29, Oct. 10, and Oct. 17 conferences.)
Issues: (1) Whether, viewing the facts from the officers’ perspective at the time, the officers acted reasonably under the Fourth Amendment by using bodyweight pressure to restrain a potentially armed and actively resisting individual only until handcuffing could be accomplished; and (2) whether the panel erred in denying qualified immunity where no case clearly established that pre-handcuffing bodyweight pressure violates the Fourth Amendment.
(Relisted after the Sept. 29, Oct. 10, and Oct. 17 conferences.)
Issue: Whether the confrontation clause of the Sixth Amendment permits the use of a screen at trial that blocks a child witness’s view of the defendant, without any individualized finding by the trial court that the screen is necessary to prevent trauma to the child.
(Relisted after the Sept. 29, Oct. 10, and Oct. 17 conferences.)
Issues: (1) Whether Presley v. Georgia‘s requirement that courts “consider alternatives to closure even when they are not offered by the parties” before closing the courtroom during a criminal trial applies even if the court intends to stream the trial via audio, video, or both; (2) when no court order is sought or made on a defendant’s right to a public trial, what qualifies as an “opportunity to object” to the denial of that right under Federal Rule of Criminal Procedure 51(b); and (3) whether the court should overrule United States v. Kagama and hold that Congress lacks the constitutional authority to criminalize conduct between members of the same Tribe that occurs on Tribal land, or at least clarify the constitutional foundation on which Congress may criminalize such conduct.
(Relisted after the Sept. 29, Oct. 10, and Oct. 17 conferences.)
Issue: Whether the court should grant the petition, vacate the judgment below, and remand the case for further consideration of the government’s pending motion to dismiss pursuant to the president’s January 20, 2025, executive order directing the attorney general to seek dismissal with prejudice of all pending cases against individuals for “conduct related to the events at or near the United States Capitol on January 6, 2021.”
(Relisted after the Sept. 29, Oct. 10, and Oct. 17 conferences.)
Issues: (1) Whether clearly established federal law requires reversal of a state appellate court’s denial of relief from a capital prosecutor’s discriminatory exercise of four peremptory strikes against Black venire members wherein the trial court, for each of the four strikes, failed to determine “the plausibility of the reason in light of all evidence with a bearing on it” under Miller-El v. Dretke; (2) whether Mississippi Supreme Court precedent, which deems waived on direct review arguments of pretext not stated in the trial record, defies this court’s clearly established federal law under Batson v. Kentucky; and (3) whether a finding of waiver on a trial record possessing Batson objections, defense counsel’s efforts to argue the objection, and the trial court’s express assurance the issues were preserved constitutes an unreasonable determination of facts.
(Relisted after the Sept. 29, Oct. 10, and Oct. 17 conferences.)
Issue: Whether the U.S. Court of Appeals for the 4th Circuit violated the Antiterrorism and Effective Death Penalty Act‘s deferential standard by overturning a state-court decision based on the supposed lack of “nuance” and “exhaustiveness” in the court’s written opinion, rather than the reasonableness of its legal conclusion.
(Relisted after the Sept. 29, Oct. 10, and Oct. 17 conferences.)
