Fifth Circuit rule striking down state rule allowing ballots to be received after Election Day
NEW ORLEANS, La. (WLBT) - A state law allowing ballots to be received up to five days after Election Day has been struck down by the Fifth Circuit Court of Appeals.
However, the ruling will not go into effect until November 18, after the November 5 general election, according to the Mississippi Secretary of State’s Office.
On Friday, judges ruled that the state statute was preempted by federal law and violated provisions of the United States Constitution.
The decision is a win for the state and national Republican Party, and others, who filed a suit back in January to block state leaders from enforcing the 2020 law, which allowed election officials to accept absentee ballots as long as they were postmarked on the day of the election and received no more than five days after it.
“I’m glad to see the Fifth Circuit agrees with the Republican National Committee,” said Pete Perry, a party to the case and a former chair of the Hinds County Republican Party. “Ballots that are counted after Election Day are problematic and unconstitutional.”
The ruling comes less than two weeks before the November presidential election, and more than four years after the state modified its election statutes amid the COVID-19 Pandemic.
It represents a partial victory for the Republican Party. The court denied a request from the plaintiffs for a permanent injunction against the state law and remanded the matter back to U.S. District Court for further proceedings.
The decision was handed down by a three-judge panel. The 24-page ruling looked at several factors, including historic precedence.
“For over a century after Congress established a uniform federal Election Day, states understood those statutes to mean what they say: that ballots must be received no later than the first Tuesday after the first Monday in November,” the court wrote.
The state argued that once ballots were mailed, they were final.
However, the court said that wasn’t the case, because the U.S. Postal Service permits senders to recall their mail, meaning voters could recall their ballots and change their votes after Election Day is over.
“While election officials are still receiving ballots, the election is ongoing: The result is not yet fixed, because live ballots are still being received,” the court wrote. “Although a single voter has made his final selection upon marking his ballot, the entire polity must do so for the overall election to conclude.”
“The election concludes when the final ballots are received and the electorate, not the individual selector, has chosen.”
While the court said all votes must be received by Election Day, they don’t have to be counted.
“The election is nonetheless consummated because officials know there are X ballots to count, and they know there are X ballots to count because the proverbial ballot box is closed,” the judges wrote. “In short, counting ballots is one of the various post-election ‘administrative actions’ that can occur after election day.”
“Receipt of the last ballot, by contrast, constitutes consummation of the election, and it must occur on Election Day.”
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