A federal appeals court ruled Friday that a Mississippi law allows mail-in ballots to be counted if they are postmarked before Election Day — but received up to five days after Election Day — is pre-empted by federal law.
The ruling by the 5th US Circuit Court of Appeals does not have any immediate impact on the current election because the three-judge panel of Trump appointees declined to issue an injunction blocking the counting of votes, and sent the case back to the lower court for further action.
It does, however, pave the way for a possible challenge that could go up to the US Supreme Courtwhich could have ramifications for states that do allow ballots postmarked before Election Day to be counted.
The appeals court ruling says that no such ballots should be counted.
“Congress statutorily designated a singular ‘day for the election’ of members of Congress and the appointment of presidential electors,” the three-judge panel wrote in its opinion. “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 decision by Judges James Ho, Kyle Duncan and Andrew Oldham notes that as of November 2022, 18 states and the District of Columbia allow post-election receipt of ballots — and suggests they should not be allowed to do so.
“Federal law requires voters to take timely steps to vote by Election Day. And federal law does not permit the State of Mississippi to extend the period for voting by one day, five days, or 100 days,” the ruling said.
Rick Hasen, a law professor at the University of California, Los Angeles, director of the Safeguarding Democracy Project and an NBC News election law analyst, called the ruling “bonkers.”
“Suffice it to say that federal law has left this to the states, and requires that people vote by election day is not the same as saying their ballots must be received by election day. Every other court to face these cases has rejected this argument,” Hasen wrote in a post on his website Friday.
“I would be very surprised if any court changed the rules for Mississippi at this late date, and even more surprised if such an order would survive Supreme Court review,” he wrote.
The decision is a major victory for the Republican National Committeewhich brought the initial lawsuit challenging Mississippi’s mail-in ballot rule. Michael Whatley, chairman of the RNC, praised the ruling as a “MASSIVE ELECTION INTEGRITY VICTORY.”
Lawrence Hurley contributed.