Appeals court ruling would block ballots received after Election Day from counting

A far-right Fifth Circuit panel held on Friday that Mississippi's law is preempted by federal law. It did not appear that the ruling would apply to this year’s election.

An extremist three-judge panel of the U.S. Court of Appeals for the Fifth Circuit held on Friday that Mississippi’s law is illegal that allows ballots to be counted if mailed by Election Day so long as they are received by then or within five days thereafter.

If upheld on appeal and extended nationwide, the ruling — holding that Mississippi’s law is preempted by federal laws setting one Election Day for federal elections — could affect laws in at least 18 states and Washington, D.C. and up to nearly 30 states.

It did not appear that the ruling would apply to this year’s election, however, due to the timing of the decision; the procedural specifics of what happens now; and any appeal, which would be expected.

The three most extreme Trump appointees on the far-right court heard the consolidated cases, which were brought by the Republican National Committee and Libertarian Party of Mississippi.

As I reported last month, though, it is an unusual case — with the RNC suing the Republican-controlled Mississippi. As such, Mississippi Attorney General Lynn Fitch, a conservative Republican, is defending the state’s law allowing the ballots mailed by Election Day to be counted. The Biden administration is also defending the state’s law, as are intervening veterans and retirees groups. The district court ruling rejecting the challenge, moreover, came from U.S. District Judge Louis Guirola Jr., a George W. Bush appointee.

And yet, on Friday, Judge Andy Oldham wrote the decision for the court — joined by Judges James Ho and Kyle Duncan — accepting the RNC’s claims wholesale.

In conclusion, Oldham wrote:

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 State’s contrary law is preempted.

In between those two statements were 20 pages of alleged “text, precedent, and historical practice“ that led the panel to this conclusion.

The problems with the ruling are many, but some of the clearest examples come when Oldham excludes inconvenient facts from his ruling or states that “of course” his ruling doesn’t affect whatever thing the logic of his ruling absolutely would affect.

For an example of the first, Oldham declares that laws like the Uniformed¹ and Overseas Citizens Absentee Voting Act (UOCAVA) that acquiesce to state ballot receipt laws do not suggest that Congress read those state laws as not being in conflict with the federal laws setting an Election Day. Instead, he just declares that those are “exceptions” — even though Congress never described them that way.

Discussing a provision of the Help America Vote Act of 2002, Oldham wrote:

[T]he fact that Congress authorized a narrow exception for potentially ineligible voters to cast provisional ballots after Election Day does not impliedly repeal all of the other federal laws that impose a singular, uniform Election Day for every other voter in America.

The same with UOCAVA. “UOCAVA also permits post-Election Day balloting, but it does so through its statutory text,“ he wrote. But its “statutory text” requires that state laws for absentee ballots apply to receipt of overseas and military ballots. So, by Oldham’s logic, did Congress authorize preempted state laws to permit “post-Election Day balloting” but only under UOCAVA? It makes no sense.

For an example of the second, Oldham declares that “of course” this wouldn’t limit counting votes after Election Day.

Well, then that’s settled. Why?

It’s a ruling that has to write around all of the laws that allow the receipt of ballots before Election Day, the federal laws that allow the receipt of ballots after Election Day, and all other practices that could contradict with such a strict definition of Election Day.

Despite the extremism of the ruling, the court did not issue a remedy, leaving that for the district court to resolve.

As such, there is no order putting Friday’s ruling into effect. Further, as even Oldham noted, the closeness to the election could counsel against any change in the rules for this election — referred to as the Purcell principle.

Further still, the district court won’t likely get the case back to issue that remdy, under normal circuit procedure, until well after Election Day — as detailed in the court’s judgment in the case.

Finally, to quote Oldham, “of course” there will be an appeal as well.

This is a sloppy ruling that could upend many laws and voting practices, but it appears, for now at least, that this is a problem that the panel is setting up to be resolved for future elections.

And yet, there is one caution I would add: This is now an appeals court ruling that has been issued. Others could cite it elsewhere — for example, in efforts to reject specific ballots in a swing state. And, although Purcell and related reliance principles would counsel against changes at this late a stage, I would be remiss not to note the possibility.

This is a breaking news story. Please check back at Law Dork for the latest.

1. This was corrected at 1:00 p.m. Oct. 26. The law is the Uniformed and Overseas Citizens Absentee Voting Act, but I initially copy-and-pasted from Judge Oldham’s decision, which incorrectly referred to the law as the Uniform and Overseas Citizens Absentee Voting Act.