Conservative judges hear Mississippi case that could peel back mail-in voting

A panel of three former President Donald Trump-appointed U.S. Court of Appeals judges heard oral arguments on Tuesday over a lower court ruling on a Mississippi election law that allows the state to continue counting mail-in absentee ballots if they’re received within five days of Election Day.

It’s a significant case for its potentially wide-ranging implications in other states -- some pivotal battlegrounds -- that currently allow elections officials to accept late-arriving ballots. If the Republicans who brought the case prevail in peeling back these mail-in voting provisions, the general election could become even closer across the country. This case is also considered by experts to be one of the likeliest election-related suits to reach the US Supreme Court before election day.

Around 20 states, including Mississippi, count mail ballots that arrive after Election Day but are postmarked on or before. They include Nevada, Virginia, Ohio, Maryland, California and New York. Disqualifying late-arriving ballots would be a major change in those states.

National and statewide Republicans had sued Mississippi's secretary of state and other election officials in January over the mail-in ballot policies of the Republican-leaning state, which adopted legislation in 2020 that permits mail ballots postmarked by Election Day and that arrive up until five days after to be accepted.

The Republican National Committee, Mississippi Republican Party and two individuals are seeking to overturn that COVID-era law. A similar challenge was brought by the Libertarian Party of Mississippi, which also testified on Tuesday.

In July, a district court rejected the lawsuit, concluding that Mississippi’s absentee ballot receipt deadline does not conflict with federal statutes.

On Tuesday, a panel of three Trump-appointed conservative judges in the U.S. Court of Appeals for the Fifth Circuit -- judges James Ho, Kyle Duncan and Andrew Oldham -- heard the Republicans’ arguments to reverse that decision.

The arguments centered on a familiar Trump argument regarding elections: that Election Day is simply a "day" and not a prolonged voting period. The court considered precedents like RNC v. DNC, and federal laws like the Uniformed And Overseas Citizens Absentee Voting Act.

GOP lawyer Conor Woodfin said on Tuesday that the “consummation date” for ballot receipt should not be up for “subjective” interpretation in each individual state -- that Election Day should be the final day for acceptance.

“The original public meaning of Election Day is the day that ballots are received by election officials," Woodfin said. "In Mississippi, it means the day for postmarking a ballot, in other states like Nevada and New Jersey, you don't even need a postmark, but that's not how courts interpret statutes.”

“The meaning of Election day is not up to the subjective views of each state. Instead, text and history tell us what those words mean and historical practice is especially important when applying words like ‘election’ that are rich with historical meaning," he continued. "For decades after Congress established the uniform national election day, those words meant the day that ballots are received by election officials."

Scott Stewart on behalf of the Mississippi Secretary of State said on Tuesday that the district court was correct to uphold Mississippi's ballot receipt law that the 5th Circuit court should affirm the decision.

He said that the petitioners -- when grappling with concepts like early voting -- have been unable to “locate a single definition” on ballot receipt.

“My friends [on the other side] say that ballot receipt is the definitive Election Day act. That is quite a statement for a party that has been unable to locate a single definition that mentions ballot receipt. I've just never seen a plain text case prevail with that kind of an absence,” he said.

The Democratic National Committee as an intervener in the case also countered the Republican petitioners. Its counsel, Donald Verrilli said the definition of "election" suggests that votes cast by Election Day would be qualifying.

“The meaning of the word 'election,' as the Supreme Court said… has been the same since the founding to today -- and it is the final collective choice of an officer by qualified electors,” Verrilli said.

“So the day of the election is the day on which that final collective choice must be consummated. That is what it means. That is what our position rests on…their position departs dramatically from that meaning,” he added.

Verrilli was asked to expand upon the term “collective” in the definition.

“What final collective choice means is that the process requires that all votes that are going to go into the determination of who holds the office are cast by Election Day. It doesn't say anything about the manner in which they are cast," he said. "That is something that the Constitution delegates expressly to state officials with. Of course, federal backstop and states have made different policy choices about that very thing,” he said.

The hearing on Tuesday comes as in-person and mail-in absentee ballots became available on Monday across Mississippi for the upcoming general election.