Appeals court sides with GOP on Miss. law that provides grace period for mail ballots

A conservative U.S. appeals court has sided with Republicans in ruling against a Mississippi law that allows election officials to count mail ballots that are postmarked by Election Day but arrive after it.

The ruling by the 5th Circuit Court of Appeals — which covers Mississippi, Louisiana and Texas — is not in effect immediately, and the judges sent the issue back to a lower court for further consideration. The decision is likely to be appealed to the U.S. Supreme Court.

In its ruling Friday, a panel of all Trump-appointed 5th Circuit judges reversed a lower court ruling and wrote that the acceptance of ballots ends on the “election day” designated by Congress.

“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.”

The judges declined to grant Republicans’ initial request for an injunction, sending the issue back to the lower 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 GOP argument against ballot grace periods

The Republican National Committee, along with the Trump campaign, has filed multiple lawsuits in various states ahead of this year’s general election aiming to disqualify ballots that arrive after Election Day.

Roughly 20 states plus Washington, D.C., accept and count mail-in ballots that are received after Election Day. (Many states require that those ballots be postmarked on or before Election Day.) States provide these grace periods in case voters forget to return their mail ballots in a timely manner, if there are issues with the postal service, or if there are other unforeseen issues like bad weather and natural disasters.

The GOP has argued, however, that states don't have the right to decide when to stop accepting ballots.

Conor Woodfin, who represented the Republican Party during oral arguments at the 5th Circuit, told the court that “the meaning of Election Day is not up to the subjective views” of individual states.

“For decades after Congress established the uniform national Election Day, those words meant the day that ballots are received by election officials,” he said.

Republicans also argued in their lawsuit that mail voting disproportionately hurts them because “voting by mail is starkly polarized by party.”

“For example, according to the MIT Election Lab, 46% of Democratic voters in the 2022 General Election mailed in their ballots, compared to only 27% of Republicans,” they wrote in their challenge. “That means the late-arriving mail-in ballots that are counted for five additional days disproportionately break for Democrats.”

This legal challenge in Mississippi is part of a larger effort from the GOP, including in the swing state of Nevada, aimed at invalidating certain mail ballots.

Democrats say the GOP cases don’t reflect “modern reality”

Democrats have called these particularly legal challenges “fringe lawsuits” that are aimed at sowing distrust in elections.

Joyce Vance, a professor at the University of Alabama School of Law, said the lawsuits are part of an effort by the GOP to “make it more difficult for some kinds of Americans” to cast a ballot.

“The RNC is really trying to set up a possible rule for the future where only ballots that are cast and counted on Election Day count,” she told NPR. “And that might have been great in the 1800s when farmers were going to market on a Tuesday and casting their ballots while they were in town, but it doesn't reflect the modern reality where we have early voting days and have mail-in voting days precisely to accommodate the fact that not everybody can get away during normal business hours on a Tuesday to vote.”

Vance said removing grace periods for mail ballots disproportionately affects members of the military and their families — particularly those who live overseas — as well as people with disabilities or an illness.

“So, all sorts of folks who are fully entitled to vote [would] get disenfranchised by a rule that would cut off ballot counting on Election Day itself,” she said. “I think the principle advancing is this effort to really make it more difficult for some kinds of Americans to vote.”

Caren Short, the director of legal and research for the League of Women Voters of the United States, said in a statement that states should be making “voting more accessible to voters—not less.”

“When a state makes voting available via absentee ballot, it must not disqualify voters who follow the rules and cast their ballot by having it postmarked by election day,” she said. “Our democracy is stronger when all votes are counted, regardless of how you decide to vote.”

Vance said this case is likely to be appealed to the U.S. Supreme Court, where it is “anyone’s guess” whether the court will hear the challenge — and whether the case would be settled before this year’s election ends.