A ruling that Mississippi mail-in ballots cannot be counted after election day could have major implications for U.S. elections.
An appeal court found that late ballots violate federal law—opening up the possibility of Republican challenges across the U.S.
The ruling by the conservative 5th circuit court of appeal stops Mississippi election officers from counting ballots that arrive after election day, even if they are postmarked before the election.
In reaching its decision, the 5th circuit quoted Trump-appointed Supreme Court judge, Brett Kavanaugh: “As Justice Kavanaugh recently emphasized: ‘To state the obvious, a State cannot conduct an election without deadlines … A deadline is not unconstitutional merely because of voters’ own failures to take timely steps to ensure their franchise.’”
By quoting Kavanaugh in the final paragraph of the ruling, the conservative 5th circuit appears to be signaling to the Supreme Court why the ruling should be upheld in the event of a higher appeal.
It also notes in the same paragraph: “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.”
However, the 5th Circuit’s decision will be sent to a lower court to implement and will not become law before the presidential election.
Newsweek sought email comment on Tuesday from the Republican National Committee and the Democratic National Committee.
University of California Los Angeles law professor, Richard Hasen, wrote on the Election Law Blog that the ruling was a “bonkers opinion.”
“It does show you that sometimes cases only become important when judges do things that are entirely unexpected. I guess we should expect more of that going forward,” he wrote.
Hasen also noted: “Mississippi is one of several states with laws allowing mailed ballots to be counted if they are postmarked by Election Day, according to the National Conference of State Legislatures. The list includes swing states such as Nevada and states such as Colorado, Oregon and Utah that rely heavily on mail voting.”
It is one of over a dozen Republican National Committee challenges to mail-in ballots before the presidential election.
Mail-in ballots tend to favor Democrats and so Republicans have launched challenges in Mississippi, Georgia, Alabama and other states.
The 5th circuit found that late ballots violate federal law, even if those ballots are postmarked by Election Day.
Friday’s ruling reverses an opinion by federal judge, Louis Guirola Jr., who dismissed a Republican challenge in July.
Mississippi election officials have 14 days to appeal the 5th circuit’s decision. Seven days after that deadline, the 5th circuit’s ruling will then be passed down to Guirola to be implemented, which means that it will not come into force before the presidential election.
In addition, the 5th Circuit noted that the courts have previously tried to avoid implementing changes shortly before an election—signaling that it doesn’t want its decision to come into force before the November 5 election.
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