A district employee from Jackson, Miss., reaches for yet more “I Voted” sticker on Nov. 7, 2023.

Rogelio V. Solis/AP

hide caption

change caption

Rogelio V. Solis/AP

A conservative U.S. appeals court has sided with Republicans in ruling against a Mississippi law that allows election officials to count ballots postmarked by Election Day but arriving later.

The ruling by the 5th Circuit Court of Appeals – which covers Mississippi, Louisiana and Texas – is not effective immediately, and the justices sent the issue back to a lower court for further consideration. The decision will likely be appealed to the U.S. Supreme Court.

In its ruling Friday, a panel of all Trump-appointed 5th Circuit judges reversed a lower court ruling and wrote that ballot acceptance ends on Congress’ designated “election day.”

“Text, precedent, and historical practice confirm that this ‘election day’ is the day on which ballots must be both cast by voters and received by state officials,” the court wrote. “Because Mississippi statute allows the receipt of ballots up to five days after federal Election Day, this is undermined by federal law.”

The justices denied the Republicans’ initial request for an injunction and sent the matter back to the lower court for “further proceedings to seek appropriate relief, with due regard to ‘the value of preserving the status quo in a voting case on the eve of an election.’ ”

The GOP argument against mail-in ballot grace periods

The Republican National Committee, along with the Trump campaign, filed multiple lawsuits in several states ahead of this year’s general election, seeking to disqualify ballots received after Election Day.

About twenty states plus Washington DC will accept and count ballots received after Election Day. (Many states require these ballots to be postmarked on or before Election Day.) States provide these grace periods in case voters forget to return their ballots on time, there are problems with the Postal Service, or other unforeseen circumstances arise. issues such as bad weather and natural disasters.

However, the Republican Party has argued that states do not have the right to decide when to stop accepting ballots.

Conor Woodfin, who represented the Republican Party during oral arguments at the 5th Circuit, told the court that “the meaning of Election Day does not reflect the subjective views” of individual states.

“For decades after Congress established a uniform national election day, these words signified the day ballots are received by election officials,” he said.

Republicans also argued in their lawsuit that voting by mail disproportionately hurts them because “voting by mail is highly polarized by party.”

“For example, according to the MIT Election Lab, 46% of Democratic voters mailed in their ballots in the 2022 general election, compared to just 27% of Republicans,” they wrote in their challenge. “That means late-arriving ballots, which are counted for an extra five days, will disproportionately break down Democrats.”

This legal challenge in Mississippi is part of a larger effort by the Republican Party, including in the swing state of Nevada, aimed at invalidating certain ballots.

Democrats say Republican cases don’t reflect “modern reality.”

Democrats have called these particular legal challenges “fringe lawsuits” aimed at sowing distrust in elections.

Joyce Vance, a professor at the University of Alabama School of Law, said the lawsuits are part of an effort by the Republican Party to “make it harder for certain types of Americans” to vote.

“The RNC is really trying to set up a possible rule for the future where only votes cast and counted on Election Day count,” she told NPR. “And that may have been great in the 1800s when farmers would go to market on Tuesdays and cast their votes while they were in town, but it doesn’t reflect the modern reality where we have early voting days and voting by mail. precisely to accommodate the fact that not everyone can go out to vote on Tuesday during normal office hours.”

Vance said eliminating ballot grace periods would disproportionately affect members of the military and their families — especially those living overseas — as well as people with disabilities or illnesses.

“So all kinds of people who are fully eligible to vote would be disenfranchised by a rule that would cut off the counting of ballots on Election Day itself,” she said. “I think the principle moving forward is this effort to really make it harder for some types of Americans to vote.”

Caren Short, legal and research director for the League of Women Voters of the United States, said in a statement that states “must make voting more accessible to voters — not less.”

“If a state allows absentee ballot voting, it should not disqualify voters who follow the rules and cast their ballots by having them postmarked on Election Day,” she said. “Our democracy is stronger when all votes are counted, regardless of how you decide to vote.”

Vance said the case will likely be appealed to the U.S. Supreme Court, where it is “anyone’s guess” whether the court will hear the case — and whether the case will be resolved before the end of this year’s election.