Late-Arriving 2024 Ballots Challenged by GOP at Appeals Court
(Bloomberg) -- A federal appeals court on Tuesday weighed a Republican challenge to Mississippi counting mail ballots that arrive within five days of an election as long as they’re postmarked by that date, in a showdown that could wind up at the US Supreme Court.
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While Mississippi isn’t a battleground state in the Nov. 5 presidential race — Donald Trump is expected to clinch its six electoral votes — the case could fuel other 2024 legal challenges in states with similar rules four years after the pandemic made absentee voting an election flash-point.
Trump and Republicans are challenging state laws that they contend make voting less secure. State election officials across the political spectrum are again defending the process, rebuffing claims that it opens the door to fraud. The Republican National Committee and Mississippi GOP sued the state, and appealed to the 5th US Circuit Court of Appeals after losing in a lower court.
Looming over the arguments is the proximity to Nov. 5. The three-judge panel pressed the Republicans’ lawyer to explain what they wanted and why changing state law only six weeks before the vote wouldn’t violate the US Supreme Court’s guidance against last-minute action by federal courts, often referred to as the Purcell principle.
Attorney Conor Woodfin replied that they aren’t asking the appeals court to block the law. Woodfin said the 5th Circuit should rule on the legal question of whether Mississippi’s receipt of ballots after Nov. 5 violated a federal law setting a uniform Election Day and then send the case back to the lower court. Woodfin added the district judge would decide what to do and whether it was too late to order a change by Nov. 5.
The 5th Circuit put the case on an expedited track. Depending on how quickly the panel rules after arguments, there could be time for the losing side to petition the justices to intervene before November.
Strange Bedfellows
The 5th Circuit is considered one of the most conservative federal appeals courts. The panel hearing the Mississippi case — Judges James Ho, Kyle Duncan and Andrew Oldham — were nominated by Trump.
Mississippi — whose Republican state officials are being backed in court by the Democratic Party and the Biden administration — argues that an “election” is the day when voters make their “final choice.” When a state finishes counting those votes is separate, Mississippi argues.
The Republican and Libertarian Party organizations, whose separate lawsuits against Mississippi were consolidated, counter that state officials must have ballots in hand on Nov. 5 to comply with Congress setting federal elections for the Tuesday after the first Monday in November.
Mississippi is one of 18 states, along with Puerto Rico, the Virgin Islands, and Washington, DC, that counts absentee ballots arriving after Election Day as long as they’re postmarked on time, according to the National Conference of State Legislatures. The Democratic National Committee said in its brief that the number is larger accounting for other states that count late-arriving ballots for overseas and military voters.
Of the seven battleground states, only Nevada counts mail ballots that arrive after Election Day, according to the NCSL. The RNC has lost cases in federal and states courts challenging Nevada’s process and is pursuing appeals.
A Mississippi federal judge upheld the state’s law in July, concluding there was no conflict between Congress setting a national Election Day and a state setting a “reasonable interval” for ballots mailed by that date to arrive and be counted.
The case has created some unusual political dynamics. Mississippi’s Republican secretary of state and attorney general are defending the law against a challenge from the state and national GOP. The DNC joined the case as an amicus or “friend of court” to support Mississippi, but the state opposed giving the party time to argue, saying it wasn’t necessary. The court granted the DNC several minutes.
The US Justice Department filed a brief in the lower court and the 5th Circuit to make clear that the federal government’s position is that Mississippi’s law — and others like it — comply with US election laws and protect military and overseas voters. Government lawyers wrote that there was historical precedent dating back to the Civil War.
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