A ruling by a federal appellate court returns the “day” to Election Day in at least three states including Texas.
The U.S. Fifth Circuit Court of Appeals issued an opinion Friday that federal law requires mail ballots to arrive by Election Day and preempts any state laws to the contrary.
Opinions issued by the Fifth Circuit set precedent for the states of Mississippi, Louisiana, and Texas, but the court’s ruling is expected to have national impact.
The Republican National Committee and Mississippi Republican Party sued in January to challenge a Mississippi law that counts mail-in ballots that arrive up to five days after Election Day.
Mississippi changed its election laws during the 2020 COVID-19 pandemic to extend the acceptance period for absentee ballots.
“Federal law requires voters to take timely steps to vote by Election Day. And federal law does not permit the State of Mississippi to extend the period for voting by one day, five days, or 100 days,” stated Circuit Judge Andrew Oldham, writing on behalf of a three-judge panel:
Congress statutorily designated a singular “day for the election” of members of Congress and the appointment of presidential electors. Text, precedent, and historical practice confirm this “day for the election” is the day by which ballots must be both cast by voters and received by state officials. Because Mississippi’s statute allows ballot receipt up to five days after the federal election day, it is preempted by federal law.
“Instead of Election Day, we now have Election Month in large part because states accept ballots that arrive days and even weeks after Election Day,” said elections expert J. Christian Adams, president of the Public Interest Legal Foundation. “This sows distrust in our system and violates federal law.”
The Foundation filed a brief in the case highlighting how Florida’s requirement that mail ballots arrive by Election Day helped the state go from “worst to first” in knowing results on election night.
Adams added that the Fifth Circuit’s opinion “is a victory for the rule of law and will have a national impact.”
Texas election law generally requires mail-in ballots to be returned by the time the polls close on Election Day.
A marked ballot that is not timely returned may not be counted.
Domestic ballots may be considered timely delivered if properly marked and received by 5:00 p.m. on the day after Election Day.
Overseas ballots are considered timely if they arrive properly marked by the fifth day after the date of the election and are post-marked prior to the delivery deadline.
The Fifth Circuit remanded the case back to a district court for “further proceedings consistent with this opinion.”
The opinion will not apply to the ongoing General Election.
