- Mississippi cannot count ballots that arrive after Election Day, the federal appeals court affirms, denying a petition for rehearing.
The Fifth Circuit Court of Appeals has declined to rehear its previous ruling, maintaining its decision that Mississippi cannot count ballots that arrive after Election Day.
In October, a three-judge panel of the federal court sided with the Republican National Committee, the Mississippi Republican Party, the Mississippi Libertarian Party and two private individuals challenging the COVID-era state law which allowed for ballots to be received and counted up to five days after an election.
As previously reported, the plaintiffs sued Harrison County election officials, along with Mississippi Secretary of State Michael Watson, in their official capacities seeking an injunction against the 2020 mail-in ballot law based on the Election Law Clause of the U.S. Constitution. That clause gives Congress the authority to set the time for choosing the election of the president, senators, and members of the U.S. House of Representatives.
READ MORE: 5th Circuit sides with Republican Party, strikes down Mississippi mail-in ballot law
In their October ruling citing U.S. Supreme Court precedence, the three-judge panel held that while states are empowered by Congress to conduct federal elections, federal laws preempt state regulation of elections.
Last Friday, the court affirmed its decision, with ten judges voting to deny a rehearing and five voting in favor.
In writing for the majority, Judge Andrew Oldham noted, “The question presented to the panel was whether, in the absence of any federal statute authorizing any deviation from the uniform Election Day requirement, States nonetheless have freedom to accept ballots for as long as they would like. The panel held no.”
Writing in dissent, Judge James Graves Jr. disagreed with Oldham, stating, “Simply stated, federal law does not mandate that ballots be received by state officials before Election Day’s conclusion, and the panel’s contrary holding is erroneous.”
It is now up to the Mississippi Secretary of State and Attorney General’s offices to determine if the state will appeal the matter to the U.S. Supreme Court.
You can read the Fifth Circuit’s rehearing denial below.
Frank Corder
