What an RNC Lawsuit in Mississippi Tells Us About Its Goal of Disenfranchising Voters in 2024

Images of five calendar dates labeled November over a light blue background. There is red paint over the dates. On the right-hand side is a red elephant sitting on a stool with the label “Republican National Committee” above it. There is a paint bucket and paint brush next to the elephant.

In advance of the 2020 general election, Mississippi’s Republican trifecta enacted a GOP-sponsored law allowing mail-in ballots postmarked on or before Election Day to be counted for up to five days after the election. 

Passed on an overwhelmingly bipartisan basis, the common-sense legislation brought the Magnolia State into alignment with approximately 20 other states and U.S. territories, where post-election ballot receipt deadlines ensure that voters are not disenfranchised due to postal delays beyond their control.  

However, a bill is currently moving through the Mississippi Legislature that repeals the five-day deadline and instead stipulates that any ballot received after 7 p.m. on Election Day “shall not be counted.” The Legislature’s move to revoke its previously uncontroversial receipt deadline — which has been in place for almost four years — is transpiring against the backdrop of a legal offensive led by the Republican National Committee (RNC). 

The RNC, flanked by the Mississippi GOP and individual voters, argues that the state’s current five-day deadline conflicts with federal law by “effectively extend[ing]” Mississippi’s federal election past the Election Day established by Congress — a proposition that even Trump-appointed judges in Illinois and North Dakota have previously rejected. 

Although the RNC’s legal challenge will likely be dismissed as moot if the new legislation is enacted, it nevertheless reveals a great deal about the committee’s strategy and objectives. 

The lawsuit is partially predicated on the claim that Mississippi’s post-Election Day receipt deadline disproportionately “harms” Republicans, whom the RNC alleges are historically less inclined to vote by mail. While tenuous, that argument might at first glance seem better suited for a battleground state, where mail-in ballots received after Election Day are more likely to have outcome determinative effects on election results.

Why then, did the RNC mount its legal challenge over mail-in ballot deadlines in Mississippi — a GOP stronghold where mail-in absentee voting is already quite restricted and where Republicans largely prevail in federal elections? 

By bringing a proactive test case before a conservative federal district court in Mississippi, the RNC hoped that it could secure the imprimatur of a Republican-appointed judge who might be amenable to its far-fetched arguments around ballot deadlines. According to the committee’s spokesperson, a favorable ruling in the case would “have major ramifications in future elections — not just in Mississippi but across the country.” 

Evidently, the RNC’s move to file the lawsuit in Mississippi is a feature, not a bug, of its broader plan to create precedent that could be used to disenfranchise voters throughout multiple states in 2024.

Nevada, New York, Ohio and Texas are just a few among the many states that have post-election ballot receipt deadlines and will see competitive congressional races this election cycle. And in light of recent reports regarding nationwide mail delivery delays, these extended deadlines will be especially crucial in ensuring that late arriving mail-in ballots are counted in the upcoming election.

In a maneuver known as “forum shopping,” the RNC filed the case in one of the most conservative federal court divisions in Mississippi.

Given that Mississippi is not a battleground state, the RNC’s decision to file its ballot deadline challenge there is most likely explained as an act of forum shopping aimed at establishing a favorable precedent for use in other cases. Rob McDuff, the director of the Impact Litigation Initiative at the Mississippi Center for Justice, told Democracy Docket that “it appears the RNC took an unconventional path in order to obtain a judge that it believed would be favorable to its position.”   

McDuff — who serves as co-counsel for pro-voting groups that intervened in opposition to RNC’s lawsuit — said that challenges to Mississippi state statutes are generally filed in the division of the U.S. District Court for the Southern District of Mississippi that is based in Jackson, the state capitol. But as he explained, “the RNC took the unusual step of filing this case in the division based in Gulfport, where the chances of drawing a conservative judge are considered to be higher.”

Rep. Cheikh Taylor, the chair of the Mississippi Democratic Party, said in a comment to Democracy Docket that “we’ve seen in recent years [how] conservatives perceive Mississippi’s courts as particularly friendly….Putting this case here in Mississippi wasn’t about affecting electoral results acutely, it was about the opportunity to dismantle voting rights as expediently as possible across the country.”

McDuff also noted that if the case were to be appealed, it would end up before the 5th U.S. Circuit Court of Appeals — the most conservative federal appeals court in the country that has a track record of hostility towards voting rights.

In the RNC’s view, mail-in ballots that arrive after Election Day are “fraudulent” and “illegitimate.”

The RNC’s central claim in its Mississippi lawsuit was that counting ballots postmarked by Election Day — but received up to five days after the election — flouts federal law, which uniformly sets Election Day as the Tuesday after the first Monday in November. The lawsuit, in seeking to nullify an election law passed by a Republican-controlled Legislature, is a notable departure from some of the committee’s past cases, which posited that state legislatures have broad discretion when it comes to regulating the “time, place, and manner” of federal elections.

Under the Republican plaintiffs’ reasoning, a ballot is not a “legal vote” unless it is received by Election Day, and any ballots received thereafter are “invalid” and “illegitimate” — even those that are lawfully cast and mailed on or before the election. Goaded by the rallying cries of former President Donald Trump surrounding the 2020 election, the lawsuit even went so far as to characterize timely cast mail-in ballots that are received after Election Day as “fraudulent.” 

Aside from contending that Mississippi’s post-election receipt deadline contravenes federal law, the Republican litigants argued that the challenged deadline impairs their constitutional right to vote because it results in “valid ballots” — especially those cast by Republican voters — being “diluted by untimely, invalid ballots.”

In support of its assertion that the deadline “disproportionately harms” Republican voters and candidates, the RNC cited a single report from the MIT Election Lab, which found that Democratic voters cast mail-in ballots nearly twice as often as their Republican counterparts in the 2022 general election. Although that report did not contain any Mississippi-specific data, the lawsuit nevertheless relied on it to speculate that “late-arriving mail-in ballots that are counted for five additional days disproportionately break for Democrats” in Mississippi elections. 

The RNC ultimately seeks a ruling prior to the 2024 election that would require Mississippi to reject otherwise lawful ballots that arrive after Election Day — a request that would be rendered moot if Legislature rescinds the deadline on its own. Judge Louis Guirola, a George W. Bush appointee, is presiding over the case, which he consolidated with a nearly identical lawsuit brought by the Mississippi Libertarian Party. 

Mississippi’s GOP secretary of state is defending the law from the RNC’s attack, as is a coalition of pro-voting groups and the U.S. Department of Justice.

In response to the lawsuit, Mississippi’s staunchly Republican secretary of state, Michael Watson, urged the court to dismiss the RNC’s claims, arguing that the GOP plaintiffs are “not harmed by the law in any way” and that their case is meritless. “Plaintiffs’ entire case rests on a fiction that Mississippi law permits mail-in absentee voters to ‘cast’ their votes after Election Day,” even though Mississippi law “allows no such thing,” Watson stated in a court brief. 

In refuting the RNC’s claim that the law adversely impacts Republican candidates’ electoral prospects, Watson and other state election officials noted that the suit fails to “show or even allege” that the state’s five-day deadline has or will “result in the loss of any election in Mississippi by any Republican candidate for President or Congress.” And since the U.S. Constitution affords states “wide discretion” to set rules for federal elections, Watson emphasized that “[w]hatever one may think of the policy,” the Mississippi Legislature acted well within its prerogative when it passed the five-day deadline.

Alongside the secretary, a duo of pro-voting organizations that intervened in the litigation, Vet Voice Foundation and the Mississippi Alliance for Retired Americans, maintained that the Republican plaintiffs lack standing and advance specious claims. The groups underscored how eliminating the state’s five-day deadline would disenfranchise large numbers of Mississippians of all political persuasions who rely on mail-in voting — especially elderly voters, voters with disabilities and those serving overseas in the military. 

The lawsuit even garnered the attention of the U.S. Department of Justice (DOJ), which submitted a statement of interest to inform the court about the importance of post-Election Day ballot receipt deadlines in safeguarding the voting rights of military and overseas voters. According to the DOJ, military and overseas voters often face “logistical challenges that can…result from transporting ballots from overseas or distant locations across the country” and therefore heavily rely on later receipt deadlines to protect against disenfranchisement. 

Attorneys for the DOJ’s Voting Section explained that while federal law already guarantees military service members the right to vote absentee, later ballot deadlines are “vital” in ensuring that their votes get counted.

The RNC’s case rests on weak footing, as similar right-wing lawsuits have repeatedly been rejected by federal courts.

In recent years, courts have consistently ruled against right-wing plaintiffs who have brought lawsuits seeking to curtail extended mail-in ballot receipt deadlines across multiple states, including Illinois, New Jersey, North Dakota and Pennsylvania. 

At the beginning of this year, a Trump-appointed federal judge dismissed a lawsuit brought by the conservative Public Interest Legal Foundation challenging North Dakota’s 13-day post-election deadline for counting mail-in ballots postmarked by Election Day. The judge concluded that the plaintiff, a county auditor, failed to demonstrate that he was injured by the challenged deadline. 

North Dakota’s top election official, Republican Secretary of State Michael Howe, applauded the ruling, calling it “a win for the rule of law in North Dakota and a win for…military and overseas voters.”

And in 2023, another Trump-appointee tossed out a case led by a GOP representative for Illinois’ 12th Congressional District, Michael Bost, who alleged that the state’s 14-day receipt deadline violates federal law and the U.S. Constitution. The GOP plaintiffs — whose claims the judge dismissed on standing grounds — appealed to the 7th U.S. Circuit Court of Appeals, which is poised to rule on the case prior to the 2024 election. 

On the eve of the 2020 election, a federal judge rejected a plea from Trump’s re-election campaign and the RNC seeking to invalidate New Jersey’s deadline, which the governor extended in light of the COVID-19 pandemic. Even the U.S. Supreme Court denied a bid from a Pennsylvania Republican congressional candidate who sought to freeze a state Supreme Court ruling that permitted mail-in ballots to be counted within three days of the 2020 election. 

In a redux of these unsuccessful challenges to ballot receipt deadlines, the RNC’s Mississippi case is once again seeking to test a set of failed arguments, this time ahead of the 2024 election. 

The Legislature is aiming to shorten the deadline prior to a ruling in the RNC’s lawsuit — a move that will harm Mississippi voters.

To the extent that state lawmakers are preemptively working to repeal the state’s five-day deadline, the RNC is getting closer to achieving its desired outcome in Mississippi. However, in the off chance that the legislation fails or changes and the RNC instead prevails in getting the deadline struck down in court, Mississippi voters might not be the only ones who could face a newfound threat of disenfranchisement.

A ruling in favor of the RNC, although only applicable to Mississippi, could have a potentially reverberating impact on voters in other states with post-election ballot receipt deadlines. As McDuff explained, “it is clear that the RNC is looking for a precedent to use elsewhere.” 

With the bill that abolishes the five-day deadline advancing through the Legislature, Taylor is deeply concerned about how the earlier deadline will affect the state’s voters who are already subject to some of “the most draconian voting laws in the country.” 

“This extra restriction will make it even harder for Mississippians that have to rely on absentee voting — the elderly, disabled, military voters — to make their voices heard. It’s no secret that many of the most marginalized Mississippians will be the voters most profoundly affected by Republicans’ continued effort to chip away at democracy.”