Mississippi’s Absentee Ballot Measure Violates Federal Law, Appeals Court Rules

by · NY Times

Mississippi’s Absentee Ballot Measure Violates Federal Law, Appeals Court Rules

The law requires officials to count absentee ballots received by mail up to five days after Election Day. It appears unlikely that the ruling will affect the current election.

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Absentee ballots waiting to be processed at the Lee County Circuit Clerk’s Office in Tupelo, Miss., in 2020.
Credit...Thomas Wells/The Northeast Mississippi Daily Journal, via Associated Press

By Isabelle Taft

A Mississippi law requiring officials to count absentee ballots received by mail up to five days after Election Day violates federal law, an appeals court ruled on Friday.

It appeared unlikely that the ruling, which sent the issue back to a lower court, would affect this election. But experts said it could eventually undermine similar practices around the country.

The Republican National Committee, the Mississippi Republican Party and other plaintiffs had challenged the law, arguing that the state had effectively extended each election beyond the date set by federal law.

The defendants, including Mississippi’s secretary of state, countered that although all votes must be cast by Election Day, states were free to take longer to receive and count the votes.

In a written opinion, a three-judge panel on the U.S. Court of Appeals for the Fifth Circuit disagreed but stopped short of blocking the law.

“Congress statutorily designated a singular ‘day for the election’ of members of Congress and the appointment of presidential electors,” wrote Judge Andrew S. Oldham, a Trump appointee. “Text, precedent and historical practice confirm this ‘day for the election’ is the day by which ballots must be both cast by voters and received by state officials.”

The panel sent the case back to the district court, which had sided with the defendants, to reconsider the case. But the appellate judges said the lower court should give “due consideration to ‘the value of preserving the status quo in a voting case on the eve of an election.’”

The decision applies only in Mississippi, Louisiana and Texas, which are under the Fifth Circuit’s jurisdiction. But its logic, if applied around the country, would invalidate similar laws in about 20 states that count absentee ballots received after Election Day, including the battleground state of Nevada.

Legal experts said the U.S. Supreme Court would be unlikely to review the case before Nov. 5 and issue a ruling that would apply nationally, because the court is generally reluctant to alter voting rules so close to an election. And the Mississippi secretary of state said it had concluded the ruling would not take effect before Election Day.

But the Mississippi case is almost certain to wind up before the high court at some point, said Richard H. Pildes, an election law expert at New York University School of Law.

Michael Whatley, chairman of the Republican National Committee, applauded Friday’s ruling as “a major win for election integrity.”

“We will continue to defend the law, fight for protection of every legal vote and stop election interference in our country’s most important election,” he said.

Liberal groups that had opposed the lawsuit said the Fifth Circuit’s ruling could cast a shadow over the practice of counting absentee votes received after Election Day, sowing mistrust in a presidential contest that polls show is extremely close.

In Mississippi, a Republican-dominated state that is all but guaranteed to send its electoral votes to former President Donald J. Trump, the lawsuit created an unusual spectacle: It pitted the national and state Republican parties against the state’s Republican secretary of state and attorney general.

Mississippi’s solicitor general, Scott Stewart, a rising star in the conservative legal world who successfully argued the case that led the Supreme Court to overturn Roe v. Wade, defended Mississippi’s absentee ballot law during oral arguments before the Fifth Circuit appeals court in September.

“States make these choices, they have a lot of discretion, and if Congress or the people themselves think as a whole that those are a bad idea, they can come in and act,” Mr. Stewart said.

The defendants argued that Congress had never shown any sign of opposing laws like Mississippi’s, which passed the Republican-controlled State Legislature in 2020.

The lawsuit named local election officials in Harrison County, a Republican stronghold on the Gulf Coast, as defendants. The county of just over 200,000 people receives only 10 to 20 absentee ballots after the deadline in each election, said Tim Holleman, the county attorney who represented the local officials.

“It really never got clear to me why these folks were worried about it,” Mr. Holleman said.

On Friday, Mr. Holleman said Harrison County election officials would respect the law, “whether it be the Legislature or the court that decides what that may be.” He said officials would wait for guidance from the secretary of state’s office before deciding how to handle late-arriving absentee ballots for this election.

The political implications are unclear. There are indications that not counting absentee ballots that arrive after Election Day could actually hurt Republicans, said Michael McDonald, a political scientist at the University of Florida who studies voting.

For example, people in rural areas are more likely to skew Republican, and are more likely to be affected by mail delays that cause their absentee ballots to arrive late, Mr. McDonald said. “Democrats who have mail ballots in hand, they’re returning their mail ballots at a faster rate than the Republicans are right now,” he said.

In August, a panel of judges on the U.S. Court of Appeals for the Seventh Circuit dismissed a lawsuit over a similar ballot-counting law in Illinois, finding that the Republican plaintiffs hadn’t shown the law had hurt them and thus lacked standing.

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