Mail-in ballots received in Mississippi after Election Day should not be counted, appeals court says

A federal appeals court ruled Friday that a Mississippi law that allows mail-in ballots to be counted if they are postmarked before Election Day but received up to five days after Election Day is preempted by federal law.

The 5th U.S. Circuit Court of Appeals ruling has no immediate impact on the current election, as the panel of three Trump-appointed judges declined to issue an injunction that would block vote counting and sent the case to the lower court Instance remanded further action.

But it paves the way for a possible lawsuit to be filed in the U.S. Supreme Court, which could impact states that allow ballots postmarked before Election Day to be counted.

The appeals court decision said such ballots should not be counted.

“Congress has established by law a single 'day' for the election of members of Congress and the appointment of presidential electors,” the three-judge panel wrote in its opinion. “Text, precedent, and historical practice confirm that this 'Election Day' is the day on which ballots must be both pour of voters and receive by state officials.”

The decision by Justices James Ho, Kyle Duncan and Andrew Oldham says that as of November 2022, 18 states and the District of Columbia allow post-election ballots to be received – and suggests they should not be allowed to do so.

“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 voting deadline by one day, five days or 100 days,” the ruling states.

Rick Hasen, a law professor at the University of California, Los Angeles, director of the Safeguarding Democracy Project and an election law analyst for NBC News, called the ruling “crazy.”

“Suffice to say, federal law has left this to the states and mandates this to the people vote Saying by Election Day is not the same as saying their ballots must be there receive until election day. Every other court hearing these cases has rejected this argument,” Hasen wrote in a post on his website Friday.

“I would be very surprised if any court changed the Mississippi rules at this late date, and I would be even more surprising if such an order survived Supreme Court review,” he wrote.

The decision is a major victory for the Republican National Committee, which filed the first lawsuit challenging Mississippi's mail-in voting rule. RNC Chairman Michael Whatley hailed the ruling as a “MASSIVE ELECTION INTEGRITY VICTORY.”