Three Trump appeals court judges consider a case that could limit mail-in voting

(CNN) — A conservative appeals court raised concerns that Republicans’ arguments for forbidding the counting of mail ballots that arrive after Election Day require throwing out votes cast before Election Day.

A panel of three judges – all appointees of former President Donald Trump – on the US 5th Circuit Court of Appeals also had tough questions at a Tuesday hearing for those defending Mississippi’s policy, the target of a GOP lawsuit, of accepting properly-postmarked mail ballots that are received by election officials within five days after an election.

The Republican National Committee and others are suing over the mail ballot policies of Mississippi – a non-battleground with limited, excuse-only absentee voting – to tee up a case that could jeopardize mail ballots cast elsewhere in the country.

Roughly 20 other states and jurisdictions, including states that may be pivotal in determining who controls the White House and Congress, have laws resembling the Magnolia State’s practices, which Republicans allege to violate federal statute.

Among the states that allow for late-arriving ballots are Nevada, Ohio and Virginia, as does Maryland, the site of a competitive Senate race. Also allowing for post-election ballot receipt is California and New York, both states that could make a major difference in which party controls the House.

Though other courts, including the trial judge in the Mississippi case, have upheld the discretion of states to count ballots mailed by Election Day that don’t make it to election officials until a set period after, this case was heard Tuesday by a far-right panel of judges on the 5th US Circuit Court of Appeals – and could end up on the Supreme Court’s docket before November’s election.

The judges on the panel grilled the challengers’ lawyers on whether their theory for why ballots must be received by Election Day would also mean that election officials couldn’t accept ballots that came in before Election Day.

“What do you do with early voting?” Judge Andrew Oldham asked the attorney for the RNC, Conor Woodfin, before noting those ballots aren’t cast and received on a uniform election day.

Judge James Ho launched on a similar inquiry while also pointing out election officials are regularly still going through the process of counting ballots after midnight of Election Day.

Mississippi is not the only state where a post-Election Day mail ballot receipt deadline is being litigated. But by bringing a case against Mississippi, the RNC has navigated the dispute to a friendly forum more likely to give Republicans a ruling they could use to boost similar challenges elsewhere.

“It’s a clever strategy,” Derek Muller, a Notre Dame Law School professor specializing in election law, told CNN. “You’re looking for the circuits that are going to be most hospitable to your claims.”

The Supreme Court – via a doctrine known as Purcell – typically discourages judicial actions that change voting rules when an election is near, which will be a hurdle the Republicans will have to overcome even if they can convince courts their arguments are right on the merits.

Still, the “Purcell principle” has been inconsistently applied by the justices. And a 5th Circuit precedent against Mississippi’s policy could be touted by Republicans in the event they try to challenge a state’s count after the election.

The RNC attorney told the appeals court it shouldn’t consider the principle because, if the 5th Circuit ruled in Republicans’ favor, the proceedings would still go back to a district court to decide what action should be taken next.

In 2020, Justice Samuel Alito ordered Pennsylvania to segregate mail ballots arrived after Election Day because of potential litigation around their validity (though in that case, the ballots were being challenged under a different legal rationale than the current lawsuit.)

Donald Trump has not let go of his 2020 rhetoric railing against mail voting  – insisting at times that elections should be “one-day voting” by “paper ballots” – even as he and the Republican party have at other times this cycle encouraged their voters to cast ballots early, including by mail.

Dispute over federal law

Republicans allege that Mississippi’s mail ballot policy violates the 19th Century federal statute that sets Election Day for the Tuesday after the first Monday in November, arguing that, in effect, the law requires that “ballots must be placed in the custody of election officials by the congressionally mandated date.”

Their opponents – which include the Justice Department and the Democratic National Committee, which have each filed their own friend-of-the-court briefs – counter that the RNC is reading into the statute a ballot receipt mandate that isn’t there.

They note that, even as nearly half the states adopted post-Election Day receipt deadlines, Congress has not passed legislation to push back against the practice. And a law Congress passed in 1986 that dealt with overseas and military battles seemed to accept some states count ballots that arrive after Election Day if they are put in the mail by Election Day.

“To have people’s votes discounted and disregarded – at no fault of their own – because the Postal Service or a storm or something happens that interferes with the timely delivery of mail – that happens in red states as much as it happens in blue states,” DC Attorney General Brian Schwalb, a Democrat who supports the Mississippi law, told CNN.

An area of dispute in the legal arguments is whether the post-Election Day receipt deadlines are a longstanding practice, or a relatively recent phenomena. One question that may influence the 5th Circuit’s thinking is how Congress understood the meaning of an Election Day when it passed the 1845 statute at the heart of the case.

“This issue has become pervasive in the last 20 years,” Russell Nobile, a senior attorney for Judicial Watch, which is representing challengers to the Mississippi deadline, told CNN before Tuesday’s hearing.

“It causes a lot of reasonable people to question the outcome of elections, when ballots are coming in, when that’s a new practice,” said Nobile, who is also representing challengers in similar lawsuit against Illinois’ ballot receipt policy.

At Tuesday’s arguments, Don Verrilli – a former US Solicitor General who is representing the Democratic National Committee – stressed that the so-called “mail box rule,” which understands a deadline to be when a response is put in the mail rather than received, was a well-accepted concept in contract law when Congress passed the 1845 Election Day statute.

Potential fallout

Mississippi requires an excuse to vote absentee, meaning that a ruling striking down the practice of accepting late-arriving ballots would have a limited effect in the state; in the 2020 general election, more than 80% of Mississippi voters cast ballots in person.

However, in other states, ending the acceptance of late-arriving ballots could have a bigger impact. Washington state, which conducts its entire election by mail, more than 400,000 ballots that were counted in the 2022 midterms arrived after Election Day.

“There are people who are comfortable and familiar with their past experiences of returning their mail ballots close to Election Day or on Election Day, knowing the state will accept those ballots,” said University of Florida political science Professor Michael McDonald. A ruling ending that practice “is going to be disruptive to them.”

There is also data, according to McDonald, suggesting that at least in some states, last-minute voters are more likely to be either unaffiliated or Republican, rather than reliable Democrats.

The appeals court questioned lawyers for Mississippi and the other parties defending the policy on whether, under their legal arguments, a state could allow an in-person voter turn in their ballot after Election Day if it was in an envelope that was sealed before Election Day. The judges also wondered whether the defendants’ legal theory would free up states to announce election results on a rolling tally leading up to Election Day.

Mississippi Solicitor General Scott Stewart charactered election policy as an “unusually powerful” area of federalism where states are allowed to act first to adopt policies with which some might disagree, and that Congress can step in if it decides a certain policy choice should be standardized nationwide.

The Republican National Committee did not provide comment for this story, but a spokesperson previously told the AP that the case “could have major ramifications in future elections — not just in Mississippi but across the country.”

If the 5th Circuit agrees with Republicans that federal law forbids states from accepting ballots that arrive after Election Day, at the very least that ruling will be cited in any case brought to challenge similar policies in other states. It would bind courts in states covered under the 5th Circuit, including Texas, which counts ballots arriving by 5 p.m. the day after Election Day if they are postmarked by Election Day, but courts in other circuits could chose to ignore the 5th Circuit’s reasoning.

However, the stakes get higher if the case goes up to the Supreme Court on emergency appeal. While it’s not likely there’d be enough time for the justices to resolve the dispute on the merits, if they refused a pause on a ruling that strikes down Mississippi’s current rules, that would supercharge litigation elsewhere to block post-election receipt deadlines.

Schwalb, the DC attorney general, called the Mississippi lawsuit “part of a very shrewd and misplaced strategy by the RNC to try to suppress the vote by filing lawsuits in courts where they think they’re going to be successful, and rolling it out to a broader audience, either through the Fifth Circuit or up to the Supreme Court to create national precedent.”

This story has been updated with additional developments.

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