On Friday afternoon, the U.S. Court of Appeals for the 5th Circuit handed down a shock decision declaring that states may not count ballots that are mailed by Election Day but received shortly thereafter. By its own terms, the ruling applies only to Mississippi, throwing the legality of its voting procedures into question just 11 days before the election. Nationwide, however, 18 states and Washington D.C. accept late-arriving ballots; the 5th Circuit’s reasoning would render all these laws illegitimate and void, nullifying hundreds of thousands (if not millions) of ballots. The court’s obvious goal, aside from destabilizing a close election, is to tee up a Supreme Court decision that could wipe out all these laws in one fell swoop.
The Republican National Committee manufactured this dispute as a test case to end the widespread practice of accepting ballots that come in after Election Day, but are postmarked by Election Day. (Republicans believe that these ballots are disproportionately likely to support Democrats.) The RNC filed its lawsuit in Mississippi because that’s the one state within the 5th Circuit that counts late-arriving ballots, and conservative lawyers knew they could get a favorable ruling from the far-right court. RNC lawyers argued that federal law requires all votes to be received by Election Day, not just cast by Election Day. And they claimed that this federal rule overrides, or “preempts,” state laws to the contrary, including Mississippi’s.
U.S. District Judge Louis Guirola Jr. sharply rejected this argument. He pointed out that, under the Constitution, “the times, places and manner” of federal elections “shall be prescribed” by the states, though Congress may “make or alter” the state’s laws. Congress has not prescribed specific rules for mail ballots, instead leaving those decisions up to the states. The fact that Congress created one “Election Day” does not mean that it intended to void ballots that are cast by that date but, for whatever reason, arrive shortly thereafter.
Now the 5th Circuit has disagreed. The three-judge panel that decided this case is made up of extremely far-right, ultra-partisan appointees of Donald Trump: Andrew Oldham, Kyle Duncan, and James Ho. In his majority opinion joined by Duncan and Ho, Oldham latched onto federal law setting out “the day for the election.” He then declared that this is “the day by which ballots must be both cast by voters and received by state officials.” Oldham asserted that a ballot is not actually “cast” until “the state takes custody of it”—a contested question on which federal law is silent. By fabricating this atextual rule, he was able to insist that late-arriving ballots are actually “cast” after Election Day.
The historical reasons why Friday’s decision is dead wrong are just as apparent. States have counted late-arriving absentee ballots for more than a century, and federal courts have never stopped them from doing so (until now). Oldham dismissed these historical examples as “outliers,” but he is wrong: The reality is that most states did not allow for broad mail voting until quite recently. Those states that did allow absentee voting frequently counted ballots cast by Election Day that came in shortly thereafter. Oldham simply sought to downplay this clear historical record to make a misleading, cherrypicked case against the practice.
Finally, the practical: Because 18 states and D.C.—including large states like California—already accept late-arriving ballots, the RNC sought a revolution in election law. Most states don’t report exactly how many of these ballots are tabulated each year. But there are a lot: In the 2022 midterms, for example, Clark County, Nevada alone received and counted about 40,000 valid mail ballots after Election Day. Around the country, the number may well reach the millions, especially since California counts ballots received up to a week after Election Day. If the Supreme Court embraced the 5th Circuit’s reasoning, it would nullify all these ballots.
And that, to be clear, is the game plan. In contrast with recent practice, the 5th Circuit did not issue a preliminary nationwide injunction, but directed the district court to “fashion appropriate relief.” It is surely too close to the election to change the rules of the game under the Supreme Court’s Purcell principle. If these lower courts try to do so, it seems likely that SCOTUS will stop them. But the 5th Circuit has now created a vehicle for the justices to visit this issue after the election and potentially strike down nearly 20 states’ laws, making voting exponentially harder in the future.
It’s worth pausing to consider how cynical and political Friday’s decision was. The 5th Circuit could, and should, have held this case until after the election, in recognition that a sweeping decision would cast a pall of confusion and uncertainty over the imminent election. Now Mississippians do not know if their ballots will count should they happen to be slightly delayed by the postal service. Voters in many other states are on notice that the 5th Circuit has announced that, as a matter of federal law, their ballots should be tossed out if they come back slightly late. And people who reject the outcome of the election will seize upon the ruling to claim that the results are illegitimate. The 5th Circuit has given the RNC exactly what it wanted: an excuse to undermine voting rights and reject the legitimacy of the election. It is an appallingly partisan and anti-democratic stunt with potentially catastrophic consequences.
