Pro-Voter Orgs Ask Full 5th Circuit to Reconsider Decision on Late-Arriving Ballots
Pro-voter organizations have asked the full 5th U.S. Circuit Court of Appeals to reconsider a three-judge panel’s decision that invalidated a Mississippi law allowing election officials to count timely postmarked mail-in ballots for up to five business days after an election.
The request follows an Oct. 25 ruling from a trio of Trump-appointed 5th Circuit judges who unanimously endorsed the Republican National Committee’s (RNC) argument that Mississippi’s five-day post-election ballot receipt deadline effectively “extended” Election Day in violation of federal law.
A lower federal court had previously rejected the RNC’s legal bid, concluding that the state’s deadline — which was enacted in 2020 with bipartisan support — comports with federal election law and the U.S. Constitution.
Although the 5th Circuit panel’s October ruling struck down the mail-in ballot receipt statute, it did not immediately require Mississippi to stop counting late received mail-in ballots for the 2024 election. Instead, the appellate judges sent the case back down to the district court for further proceedings, which have not yet commenced.
In a petition filed Friday, two advocacy groups — Vet Voice Foundation and the Mississippi Alliance for Retired Americans — argued that the entire bench of active 5th Circuit judges should rehear the case and ultimately affirm the district court’s rejection of the RNC’s lawsuit.
The groups underscored the importance of post-election ballot receipt deadlines in protecting overseas and military voters from disenfranchisement, while also noting that the practice of counting late-arriving ballots postmarked on or before Election Day is commonplace across the country.
Approximately 20 other states and U.S. territories permit timely cast ballots to be received after Election Day, including Texas, which falls within the 5th Circuit’s jurisdiction.
As part of their arguments in support of rehearing en banc, the advocacy groups said the U.S. Constitution’s Elections Clause affords state legislatures considerable latitude when it comes to regulating federal elections.
“The panel’s decision…dramatically upsets the balance between state and federal election administration struck by the Constitution’s Elections Clause, by reading into the federal statutes an unspoken limitation on state power that has no grounding in text or history,” the petition reads.
Up until the 5th Circuit’s recent decision, no other court had ruled in favor of striking down a state’s post-election receipt deadline, according to the petition. Within the past year alone, federal courts have soundly rejected right-wing legal challenges over ballot receipt deadlines in Illinois, Nevada and North Dakota, all of which asserted similar arguments to those made by the RNC’s Mississippi case.