Three judges from Trump's appeals court will evaluate a situation with the potential to curtail mail-in balloting.
The Republican National Committee and other critics accuse Mississippi of breaching federal statutes by accepting mail-in ballots that reach election authorities within five days following Election Day, as long as they carry proper postmarks. This practice mirrors laws in approximately 20 other states and jurisdictions, including those that might determine the controlling party in the White House and Congress.
States permitting late-arriving ballots include Nevada, Ohio, and Virginia, as well as Maryland, a site of a contentious Senate race. California and New York, states that could significantly impact the House party majority, also allow post-election ballot receipt.
Despite various courts, including the presiding judge in the Mississippi case, upholding states' discretion to count mail-in ballots sent by Election Day that arrive afterward within a specified period, the Mississippi dispute is being heard by a conservative panel of judges on the 5th US Circuit Court of Appeals. If it progresses to the Supreme Court, it could influence how similar challenges are tackled across other states before the November elections.
Mississippi is not alone in facing such litigation. The RNC strategically chose this case to take advantage of a favorable hearing forum, which they believe will favor their views in boosting similar challenges elsewhere.
"It's a clever move," said Derek Muller, a Notre Dame Law School professor specializing in election law. "You're seeking the circuits that will most likely support your claims."
The Supreme Court usually advises against changing voting rules close to an election, a hurdle that the Republican party must overcome if they are successful in convincing the courts that their arguments are valid. The "Purcell principle" has, however, been inconsistently implemented by the justices. If a 5th Circuit precedent opposes Mississippi's policy, it could serve as ammunition for Republican challenges in other states after the election.
In 2020, Justice Samuel Alito ordered Pennsylvania to segregate late-arriving ballots due to possible litigation over their validity (although the ballots were challenged based on different legal grounds than those in the current lawsuit).
Prior to reaching the Supreme Court, the Mississippi case will be heard by three conservative appointees on the 5th Circuit panel: Judge James Ho, Kyle Duncan, and Andrew Oldham.
Donald Trump's antipathy towards mail voting has remained unabated since the 2020 elections, frequently advocating for "one-day voting" and "paper ballots" while simultaneously encouraging voters to vote early by mail.
Dispute over federal legislation
Republicans contend that Mississippi's mail-in ballot statute violates the 19th-century federal statute that fixes Election Day on the Tuesday following the first Monday in November. They argue that the law necessitates that "ballots should be handed over to election officials by the congressionally ordained date."
On the other hand, opponents, including the Justice Department and the Democratic National Committee, argue that the RNC is interpreting the statute to mandate ballot receipt in a manner that is not present. They cite that, although nearly half the states have adopted post-Election Day deadline policies, Congress has yet to introduce legislation against this practice.
Additionally, they point out that a law Congress passed in 1986 regarding overseas and military ballots indirectly accepted certain states' practices of counting mail-in ballots received after Election Day, provided these had been dispatched by Election Day.
"To disqualify people's votes due to no fault of their own, thanks to delays by the Postal Service or a storm, among other factors that interfere with on-time delivery of mail, this occurs in red states as much as blue states," said DC Attorney General Brian Schwalb, a Democrat who supports the Mississippi law.
An area of legal disagreement is whether the post-Election Day receipt deadlines are a traditional practice or a relatively new phenomenon. One concern the 5th Circuit panel may investigate on Tuesday is how Congress understood the meaning of Election Day when it approved the 1845 statute at the heart of the dispute.
"This issue has become pervasive in the last 20 years," said Russell Nobile, a senior attorney for Judicial Watch, representing challengers to the Mississippi deadline and pursuing a separate case against Illinois' policy of accepting late-arriving ballots.
"It raises questions about the results of elections for many reasonable people when ballots start arriving long after the election, which is a new practice," Nobile observed.
Ending the acceptance of late-arriving ballots in Mississippi would have minimal consequences due to the state's requirement for a reason to vote by mail, with more than 80% of voters casting their votes in person during the 2020 general election. However, in other states that rely heavily on mail-in voting, such as Washington state, which conducted its entire 2022 midterm election by mail, ending this practice could impact an extensive number of votes.
"There are people who are accustomed to returning their mail ballots close to Election Day or on Election Day, knowing that the state will accept these late ballots. A ruling to terminate this practice would disrupt them," said University of Florida political science Professor Michael McDonald.
The Republican National Committee declined to comment on this matter, but previously told AP that the situation could have significant consequences in future elections, not just in Mississippi but nationwide.
If the 5th Circuit supports Republicans' argument that federal law prohibits states from accepting ballots post-Election Day, this decision will undoubtedly be utilized in any case challenging equivalent policies in other states. This judgment would obligate courts in states under the 5th Circuit's jurisdiction, including Texas, which accepts ballots up till 5 p.m. the day after Election Day if they've been postmarked by Election Day. However, courts outside this vicinity might opt to disregard the 5th Circuit's reasoning.
The stakes rise significantly if the case moves to the Supreme Court on an emergency appeal. Although it's improbable that the justices would have enough time to settle the issue on its merits, if they denied a temporary halt to a ruling that strikes down Mississippi's current guidelines, it would significantly escalate litigation in other locations to block post-election receiving deadlines.
Schwalb, the DC Attorney General, labeled the Mississippi lawsuit as "a very clever and misguided strategy by the RNC to suppress voting by submitting lawsuits in courts they believe they'll prevail in, and widening the scope of this strategy to a broader audience through the 5th Circuit or the Supreme Court to establish national precedent."
In the context of the ongoing dispute, Republicans argue that Mississippi's mail-in ballot statute violates a 19th-century federal law, suggesting that ballots should be handed over to election officials by Election Day. On the contrary, critics, including the Justice Department and the Democratic National Committee, assert that the RNC is misinterpreting the federal law by asserting that it necessitates ballot receipt on the congressionally ordained date.
Following this line of argument, if a 5th Circuit precedent opposes Mississippi's policy on accepting mail-in ballots post-Election Day, it could serve as a powerful tool for Republicans to challenge similar policies in other states after the election, potentially influencing federal legislation on mail-in voting.
