JACKSON, Miss. — A federal appeals court panel incorrectly interpreted federal and state laws when it ruled that Mississippi cannot count mail-in ballots that are cast and postmarked by Election Day but arrive a few days later, two groups argue as they seek a new hearing.
Attorneys for Vet Voice Foundation and Mississippi Alliance for Retired Americans are asking the entire 5th U.S. Circuit Court of Appeals to reconsider the ruling that a portion of the court issued Oct. 25.
The ruling did not affect the counting of ballots for the Nov. 5 election because the three-judge panel noted that federal court precedents discourage court actions that change established procedures shortly before an election.
However, the case could affect voting across the U.S. if the Supreme Court ultimately issues a ruling.
The attorneys for Vet Voice Foundation and the Mississippi Alliance for Retired Americans argue in court papers filed Friday that the panel of judges “incorrectly suggested that post-election day ballot receipt deadlines are a recent invention.”
“In fact, the practice of counting ballots cast by election day but received afterward goes back to the Civil War, when many states permitted soldiers to vote in the field before sending their ballots to soldiers’ home precincts,” attorneys for the two groups wrote.
Many states have laws that allow counting of ballots that are cast by Election Day but received later, the attorneys wrote.
“Far from making any attempt to preempt these laws, Congress has acknowledged and approved of them for more than five decades,” they wrote.
The three-judge panel of the conservative appeals court reversed a July decision by U.S. District Judge Louis Guirola Jr., who had dismissed challenges to Mississippi’s election law by the Republican National Committee, the Libertarian Party of Mississippi and others.
Richard Hasen, a professor at the University of California, Los Angeles School of Law, wrote on his election law blog that the ruling by the appeals court panel was a “bonkers opinion” and noted that “every other court to face these cases has rejected this argument.”
Republicans filed more than 100 lawsuits challenging various aspects of vote-casting after being chastised repeatedly by judges in 2020 for bringing complaints about how the election was run only after votes were tallied.
The list of states that allow mailed ballots to be counted if they are postmarked by Election Day includes swing states such as Nevada and states such as Colorado, Oregon and Utah that rely heavily on mail voting.
In July, a federal judge dismissed a similar lawsuit over counting mailed ballots in Nevada. The Republican National Committee has asked the 9th Circuit Court of Appeals to revive that case.
Guirola wrote that Mississippi’s law does not conflict with federal election laws. The suit challenging the Mississippi law argued that the state improperly extends the federal election and that, as a result, “timely, valid ballots are diluted by untimely, invalid ballots.”
Guirola disagreed, writing that “no ‘final selection’ is made after the federal election day under Mississippi’s law. All that occurs after election day is the delivery and counting of ballots cast on or before election day.”
Although the Mississippi challenge was led by Republicans and Libertarians, there is bipartisan support for the state’s practice. Mississippi Attorney General Lynn Fitch is defending the state’s top election official, Secretary of State Michael Watson, in the lawsuit. Both are Republicans.
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Associated Press reporters Kevin McGill in New Orleans and Mark Sherman in Washington contributed to this report.
