This Case Could Make Elections Actually End On Election Day

 ‘If the Supreme Court then upheld the 5th Circuit, that decision would wipe out all state statutes that allow absentee ballots received after Election Day to be counted.’

During the 2020 pandemic, Mississippi extended the deadline for mail-in ballots, allowing ballots to be received and counted five business days after the election so long as they were postmarked on or before Election Day. This extension was later codified into law. But a challenge to the law has made its way to the U.S. Fifth Circuit Court of Appeals in a case that has the potential to ensure that elections end on Election Day.

In January, the Republican National Committee (RNC) filed a suit challenging the law in conjunction with the Mississippi Republican Party, James Perry, and Matthew Lamb. The Libertarian Party filed a similar suit in February that was later consolidated with the GOP-led suit. The suit argues, in part, that the state law violates federal statute.

A three-judge panel for the Fifth Circuit Court of Appeals heard oral arguments Tuesday.

Mississippi’s Extension Violates Federal Law, Suit Says

The RNC suit argues that Congress “established a uniform, national day to elect members of Congress and to appoint presidential electors” but that “Mississippi contravenes those federal laws by counting mail-in ballots that are received up to five business days after Election Day.”

“Mississippi effectively extends Mississippi’s federal election past the Election Day established by Congress,” the suit contends. The suit further alleges that the deadline extension for mail-in ballots harms the plaintiffs because the “ballots that are counted for five additional days disproportionately break for Democrats.”

The suit lists Mississippi Secretary of State Michael Watson and several Harrison County Election officials as the defendants.

A federal district court judge upheld the law in July, ruling the extension deadline is compliant with federal law.

“According to Foster, Congress set a national Election Day to avoid the ‘evils’ of burdening citizens with multiple election days and of risking undue influence upon voters in one state from the announced tallies in states voting earlier,” Judge Louis Guirola Jr. wrote in his July ruling. “Neither of those concerns is raised by allowing a reasonable interval for ballots cast and postmarked by Election Day to arrive by mail.”

The plaintiffs appealed the decision to the Fifth Circuit Court.

Fifth Circuit Hears Oral Arguments

Fifth Circuit Court Judges James Ho, Stuart Kyle Duncan, and Andrew Oldham heard oral arguments Tuesday, grilling both the plaintiffs and defendants

“The meaning of Election Day is not up to the subjective views of each state,” RNC lawyer Conor Woodfin said. “Instead, text and history tell us what those words mean, and historical practice is especially important when applying words like ‘election’ that are rich with historical meaning.”

“For decades after Congress established the uniform national Election Day, those words meant the day that ballots are received by election officials. That remains the public meaning today,” Woodfin argued.

Oldham interjected to ask Woodfin to explain what he would “do with early voting.” Woodfin defended the practice, arguing that early voting has a “long historical” precedent and that under Foster, the meaning of “election” is “the final selection of officers.”

“So voters relinquishing those ballots or casting those ballots before Election Day doesn’t present that same problem,” Woodfin argued.

T. Russell Nobile, counsel for Judicial Watch on behalf of the Libertarian Party of Mississippi, argued that Election Day occurs when election officials receive the final ballot for the election.

Scott Stewart, representing the Mississippi Secretary of State, asserted that the plaintiffs failed to provide a “single definition that mentions ballot receipt” to support their argument that “ballot receipt is the definitive Election Day act.”

“[Plaintiffs] basic problem is this: the plaintiffs never point to anything to show that the federal Election Day statutes actually barred post-election day receipt.”

Christopher Dodge, on behalf of the intervenors, echoed Stewart’s argument, saying that during the Second World War, Congress said service members serving overseas must return their ballot by Election Day, but, according to Dodge, “in the very same statute, with full knowledge that at that time eight or nine states had these post-election day receipt deadlines, Congress said that service members could still vote ‘in accordance with the law of their state,’ meaning with the benefit of these enlarged time periods for receipt.”

Oldham interjected to express concern with Dodge’s argument: “I don’t understand how it really helps you. Why isn’t the negative implication — which is powerfully undermining of your point — I mean, the fact that Congress saw a need to go out and embrace this textually for service members voting under different statutes would seem to suggest that they did not do the same for just general absentee ballots.”

Dodge disagreed but was later pressed by another judge on the panel about the issue.

What Happens Next?

The plaintiffs are requesting that the Fifth Circuit Court of Appeals reverse Guirola’s decision and remand the case back to the lower court for judgment.

Hans von Spakovsky, the manager of the Election Law Reform Initiative at The Heritage Foundation, explained to The Federalist what could happen next.

“If the 5th Circuit Court of Appeals overrules the decision of the lower federal district court judge and holds that counting ballots received after Election Day violates the federal statute setting the national day for federal elections as the ‘Tuesday next after the first Monday in November,’ then the case would be sent back down to the lower court for that court to determine what the remedy should be,” von Spakovsky said. “However, it would not go back down to the lower court from the 5th Circuit if that decision by the appeals court is appealed by the state of Mississippi to the U.S. Supreme Court and the Supreme Court accepts the appeal.”

“If the Supreme Court then upheld the 5th Circuit, that decision would wipe out all state statutes that allow absentee ballots received after Election Day to be counted,” von Spakovsky continued. “If the 5th Circuit’s decision is not appealed or the Supreme Court does not accept an appeal, then the 5th Circuit’s opinion would only affect states over which it has jurisdiction. The 5th Circuit covers Mississippi, Louisiana, and Texas.”

Notably, several states changed their rules in 2020 to permit late ballots (that in some cases lacked a postmark) to be counted as valid so long as they arrived within an allotted time frame. Those rules remain in effect in numerous states ahead of the 2024 election.

Nevada, for example, accepted mail-in ballots up to four days after Election Day in 2020 so long as they were postmarked by Election Day. The temporary statute was later codified into law. The RNC filed a suit arguing that accepting mail-in ballots four days after Election Day is unconstitutional. But a U.S. District Court judge dismissed the suit on standing, ruling the RNC did not prove the extended deadline created a disadvantage.

The Commonwealth Court of Pennsylvania recently ruled that state law “requiring election officials to reject improperly dated or undated mail-in ballots” is “unconstitutional.”