Controversy Continues over States’ Late-Ballot Laws

A federal circuit court has ruled invalid a state election law allowing election officials to count mail-in ballots that arrive after the day set for elections. In Republican National Committee v. Wetzel, although the district court upheld the law, the appellate court reversed, holding that the state statute was preempted by federal laws that set a deadline for “Election Day.” As several other states have similar laws, prominent attorneys in the field say the ruling may set up a split among courts across the country.

Challenge to Mississippi Absentee Voting Statute

In the presidential election of 2020, during the COVID-19 pandemic, the number of mailed ballots increased significantly compared to the 2016 election, according to reports by both the Massachusetts Institute of Technology and the U.S. Election Assistance Commission. Eighteen states now allow mail-in ballots to arrive after Election Day.

In 2020, Mississippi became one of those states, changing its election laws to accept ballots “postmarked on or before the date of the election and received by the registrar no more than five (5) business days after the election.” In 2024, the state “amended the statute to cover absentee ballots transmitted by common carriers in addition to the United States Postal Service.”

In two separate lawsuits, plaintiffs including the Republican National Committee and the Mississippi Republican Party sued Mississippi state officials in the U.S. District Court for the Southern District of Mississippi, claiming that federal statutes preempt Mississippi’s law and “alleging violations of the right to stand for public office and the right to vote under the First and Fourteenth Amendments.” Two voter advocacy organizations intervened as defendants in each case, and the district court consolidated the two cases.

District Court Upholds State’s Election Law

On cross-motions for summary judgment, the district court upheld the law. After finding that the plaintiffs had sufficiently alleged standing, the district court then considered whether the Mississippi law conflicted with federal law. Answering in the negative, the court observed that “[t]he legislative history of the [federal election day] statutes reflects Congress’s concern that citizens be able to exercise their right to vote.” Put another way, “it is difficult to conceive that Congress intended the federal election day statutes to have the effect of impeding citizens in exercising their right to vote.”

As a result, the court found that “Mississippi’s statute operates consistently with and does not conflict with the Electors Clause or the election-day statutes.” The plaintiffs appealed.

Fifth Circuit Holds Mississippi’s Law Is Preempted

A unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit reversed, holding that “[f]ederal 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.”

In its decision, the appellate court cited two separate provisions in the U.S. Constitution. First, the Electors Clause provides: “The Congress may determine the Time of chusing the Electors” for president. And second, the Elections Clause provides: “The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislative thereof; but the Congress may at any time by Law make or alter such Regulations.”

According to the Fifth Circuit, pursuant to these provisions, the U.S. Congress enacted statutes that “mandate[] holding all elections for Congress and the Presidency on a single day throughout the Union.” This “Election Day” was established as “[t]he Tuesday next after the 1st Monday in November.” And although the Elections Clause creates a “default presumption of State regulation,” the states’ power goes “only so far as Congress declines to preempt state legislative choices.” And so, according to the court of appeals, “[t]he question, then, is whether Mississippi’s law is ‘inconsistent with’ federal statutes establishing ‘the day for the election.’”

Relying on the U.S. Supreme Court’s 1997 decision in Foster v. Love, the court identified three elements in the definition of the term “election”: (1) official action, (2) finality, and (3) consummation. First, regarding official action, the court observed that “[t]he State’s problem is that it thinks a ballot can be ‘cast’ before it is received.” Rather, the court held, “it should be . . . obvious that a ballot is ‘cast’ when the State takes custody of it.” Second, regarding finality, the court observed that “the election concludes when the final ballots are received and the electorate, not the individual selector, has chosen.” Finally, the court observed that “the election is consummated when the last ballot is received and the ballot box is closed.” In its analysis, the Fifth Circuit recognized that while counting ballots is an “administrative action[]” that needs to take place after Election Day, “[r]eceipt of the last ballot, by contrast, constitutes consummation of the election, and it must occur on Election Day.”

Appellate Court Rejects the Defendants’ Arguments

The State of Mississippi, the intervenors, and the amici submitting briefs proffered multiple federal election-day statutes to suggest that ballots can legally be counted after Election Day. For instance, the Uniform and Overseas Citizens Absentee Voting Act provides procedures for voting by military members and civilians living abroad. And the 1970 amendments to the Voting Rights Act “established a uniform absentee-ballot scheme for presidential elections.” The Fifth Circuit distinguished these laws, however, because “[n]othing in these statutes says that States are allowed to accept and count ballots received after Election Day.”

By contrast, the Help America Vote Act of 2002 (HAVA) “establishes a procedure for provisional voting when a voter’s eligibility is in question,” and “[a]ll jurisdictions that issue such ballots accept them after Election Day.” The Fifth Circuit was not persuaded, however: “[T]he best way to harmonize HAVA with the other statutes governing the federal Election Day is that the former is a narrow exception that authorizes States to receive a certain small number of provisional ballots after Election Day from potentially unqualified voters.” Recognizing that other federal statutes permit states to hold elections after Election Day, such as in the case of a vacancy or force majeure events, the Fifth Circuit observed: “Where Congress wants to make exceptions to the federal Election Day statutes, it has done so. All of this further proves Congress did not abrogate the uniform Election Day in other, non-excepted circumstances.”

Finally, Mississippi suggested that the court should employ a “mailbox rule” for voting—similar to that applied in contract law and federal tax law. In other words, “[o]nce a voter casts her ballot, her ‘election’ of a candidate is complete.” The Fifth Circuit rejected this argument as well: “But voting is not a contract or tax return.” The court continued: “So the fact that mailbox rules are authorized in other areas of law is at best irrelevant. And at worst, it shows that Congress knows how to embrace a mailbox rule when it wants to do so.”

No Effect on 2024 Election

The Fifth Circuit reversed and remanded, declining to issue a permanent injunction and citing the U.S. Supreme Court’s ruling in Purcell v. Gonzalez, which stands for the principle that courts should avoid remedies that could create confusion close to an election. The court explained: “Today’s decision says nothing about remedies. . . . [W]e remand to the district 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.’”

Petition for Rehearing

Soon after the Fifth Circuit panel’s ruling, the pro-voter organizations that intervened as defendants filed a petition for rehearing en banc, asking the full Fifth Circuit to reconsider the decision. As of the date of this publication, that petition remains pending. In the petition, the appellees argued that the Mississippi law “is critical to protecting the voting rights of members of the Armed Services when stationed away from home, whose ballots may otherwise arrive too late to be counted.” The petitioners further argued that “[t]he panel’s decision further dramatically upsets the balance between state and federal election administration struck by the Constitution’s Elections Clause, by reading into the federal statutes an unspoken limitation on state power that has no grounding in text or history.”

According to the petition, “[u]ntil the panel’s decision, every court to address the merits of the question concluded that the Election Day Statutes operate harmoniously with laws like Mississippi’s.” For instance, in the 2020 case of Pennsylvania Democratic Party v. Boockvar, the Pennsylvania Supreme Court ordered a three-day extension of the deadline to receive absentee and mail-in ballots. And that same year, the U. S. District Court for the District of New Jersey rejected a challenge to a similar New Jersey law. According to the district court, because federal laws “are silent on methods of determining the timeliness of ballots,” New Jersey’s method of determining whether ballots are cast on or before election day “is not preempted.”

A “Core Voting Rights Matter”

The Fifth Circuit’s decision “goes to the very heart of some of the issues that voting rights organizations have being fighting for,” notes Allegra Lawrence-Hardy, Atlanta, GA, Co-Chair of the ABA Litigation Section’s Minority Trial Lawyer Committee. Similarly, the decision “goes to a real core voting rights matter and federalism matter,” agrees Adam C. Bonin, Philadelphia, PA, an attorney practicing in election law cases. “The Constitution sets forth that election day is the first Tuesday after the first Monday in November for federal officers,” states Bonin, and the issue is “who gets to decide what election day means and how much federal authorization do you need to get around that.”

“This decision removes freedoms from states to make these determinations which otherwise allow voters the ability to go up to election day before casting their ballot regardless of whether they’re doing so in person or remotely,” opines Bonin. “I don’t think it squares with a common understanding of what it means to cast a ballot,” he adds. “It’s important that states have the leeway to give voters as much time as possible to make a considered judgment; things sometimes do happen in those last days of a race,” continues Bonin. “Voters shouldn’t be disenfranchised based on how far they are from their own states on election day,” he concludes.

Comparison to Other Cases

Both Lawrence-Hardy and Bonin recall the 2020 decision in Boockvar. “We had a situation in Pennsylvania in 2020 where it was well documented that the USPS was having difficulty delivering election mail promptly during COVID,” notes Bonin. “This was occurring while state law authorized voters to request mail-in ballots up to very close to election day, such that there wasn’t realistically enough turnaround time between when the voters really could request their ballots and giving them a chance to actually return them, especially when they’re doing this from out of state,” he summarizes. “So the state supreme court unanimously agreed that this was a problem, and then split 5–2 on remedy,” recalls Bonin.

“The Pennsylvania case got a lot of attention in the last election. Pennsylvania, New Jersey, and Illinois have all rejected similar challenges,” observes Lawrence-Hardy. “And so, we’re seeing these challenges come up through the states, and we know that they embolden other challengers to seek to overturn similar provisions in other states,” she adds.

Anticipating a Possible Rehearing

“There are a number of states that have similar laws,” advises Lawrence-Hardy. “And so here, you have voting organizations that have asked the Fifth Circuit to reconsider the case because what’s really important, they argue, is making sure that voters’ voices are heard,” she adds. In addition to Mississippi, “seventeen states and the District of Columbia count ballots received after election day, that are post-marked on or before election day regardless of who casts those votes,” notes Lawrence-Hardy. Many of those states submitted an amicus brief in the Fifth Circuit arguing in support of the Mississippi law.

“This is not a case where it would be surprising for the Fifth Circuit to grant rehearing,” continues Lawrence-Hardy, noting that “[t]he petition for rehearing certainly makes a strong argument that the Fifth Circuit opinion is an outlier.” “[The petition] cites lower court opinions, in which courts have rejected challenges similar to the challenge that the RNC has made in this case,” says Lawrence-Hardy, “and the petition also cites Supreme Court precedent that acknowledges that a decision to accept ballots mailed by election day, but received afterwards is a ‘policy choice’ that the Constitution and federal statutes leave to the states, and there’s lots of case law on that.”

What Does the Future Hold?

“There are a lot of people who think that if you put something in the mail in time, then that’s enough to count,” adds Bonin. “The biggest category of mail-in ballots that are disqualified in Pennsylvania every year are those which were cast but just not received in time,” he adds. “If this reasoning [in Wetzel] prevails, it’s going to require a lot of money to be spent on voter education,” Bonin suggests.

“I think for all of us, we are having to stay agile,” poses Lawrence-Hardy. “We now have a very important role to play in protecting voters and for ensuring that their voices are heard,” she declares. “I think it’s just a reminder for all of us—whether we practice in election law or whether we are just lawyers who are sworn to uphold the Constitution—to look out for opportunities to support the courts in their roles,” she adds.