5th Circuit sides with Republican Party, strikes down Mississippi mail-in ballot law

• The 5th Circuit struck down Mississippi law that allowed mail-in ballots to be accepted up to five days after the election. The decision could have national implications, but won’t impact next Tuesday’s election.

During COVID, the Mississippi Legislature passed a law permitting mail-in ballots, sent on or before Election Day, to be received and counted up to five days after the election. On Friday, a panel of the 5th Circuit Court of Appeals struck down the law.

The 5th Circuit’s decision stemmed from a lawsuit filed by the Republican National Committee, the Mississippi Republican Party, the Mississippi Libertarian Party and two private individuals.

Plaintiffs sued Harrison County election officials, along with Mississippi Secretary of State Michael Watson, in their official capacities. The suit sought an injunction against the 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.

The Case

A U.S. District Court in Mississippi previously rejected the plaintiffs’ arguments, but on appeal, a three-judge panel of the 5th Circuit overturned the District Court’s decision. Citing Supreme Court precedence, the 5th Circuit panel held that while states are empowered by Congress to conduct federal elections, federal laws preempt state regulation of elections.

The Court noted that Congress, in 1845, fixed a “‘uniform time’ for appointing presidential electors on the Tuesday after the first Monday in November.” Then, in 1872, Congress acted to require congressional elections to occur on the same day as the presidential election.

Relying on the historical and legal precedent, the 5th Circuit panel’s decision explained “it is “obvious that a ballot is ‘cast’ when the State takes custody of it.”

“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 Court wrote. “Because Mississippi’s statute allows ballot receipt up to five days after the federal election day, it is preempted by federal law.”

Mississippi Republican Party Chairman Mike Hurst said in a statement that the Court’s decision “ensures our elections are fair, secure and transparent, while giving certainty to all Mississippians that Election Day actually means Election Day.”

Potential Impact

At least 20 states, plus Washington, D.C., currently accept mail-in ballots received after Election Day. A Circuit Court of Appeals decision applies to all federal courts within that Circuit’s jurisdiction — in this case Texas, Louisiana and Mississippi — but is not binding on other circuits.

However, given the breadth of laws permitting mail-in ballots to be received and counted after Election Day, this ruling will likely generate challenges and decisions in other circuits. Ultimately, the issue will probably be reviewed by the U.S. Supreme Court, particularly if it results in split circuits.

In the interim, Friday’s ruling will not impact the process applied to next Tuesday’s election. The Fifth Circuit declined to enter an injunction on Mississippi’s law. “Instead, we remand to the district court for further proceedings to fashion appropriate relief, giving due consideration to ‘the value of preserving the status quo in a voting case on the eve of an election,'” the Court wrote.

Timeline for Application or Appeal

Even if the case was immediately remanded, it would be unlikely a remedy could be crafted by the District Court in time for Tuesday’s election. However, under the rules applied to federal appeals, the state has the right to ask for an en banc hearing of the full Fifth Circuit and also to appeal to the U.S. Supreme Court.

The timelines for exercising those rights pushes any application of the Fifth Circuit panel’s decision past the election.

Secretary of State Michael Watson said on the X platform, “According to Rule 40 and 41 of the Federal Rules of Appellate Procedure, the 5th Circuit panel’s opinion will not take effect until at least November 18th, meaning this will not affect the November 5th General Election.”

Watson said he was exploring “all available legal options,” but stopped short of voicing support for an appeal of the ruling.

What does all this mean? Even with the ruling, mail-in ballots will be counted in Mississippi if postmarked by next Tuesday and received within five days. After that, the 5th Circuit’s ruling will likely be the first salvo in a brewing fight over same day voting.