Dear Reader,

On September 24, 2024, a panel of Fifth Circuit Judges heard oral argument in RNC v. Wentzel, a Mississippi case about counting mail-in (absentee) ballots. Mississippi counts ballots that are received up to five business days after an election, so long as they are postmarked on or before Election Day. The Republican National Committee challenged that rule, arguing that extending the count “effectively extends Mississippi’s federal election past the Election Day established by Congress” and results in “valid ballots” being “diluted by untimely, invalid ballots.” A federal district judge ruled against the RNC in July, and the appeal was promptly teed up to get the case to oral argument just two months later. That was one day after the mail-in absentee ballots became available.

If the RNC wins, a slew of Mississippi voters’ votes might not count. Mail-in ballots for military members and their family members, along with other Americans abroad, have to be sent out 45 days before the election. Mississippi sends other mail-in ballots 30-45 days ahead of Election Day. When those ballots went out, voters were informed that their ballots would be counted so long as they were postmarked by Election Day and received within five business days thereafter. If the Fifth Circuit changes those rules, it would be hard to effectively reach impacted voters in the time remaining before the election. And as DOJ pointed out in an amicus brief they filed in the case, among the voters likely to be harmed would be members of the military and their families stationed overseas.

It’s counterintuitive to change the rules at this point, potentially disenfranchising tens of thousands of voters. There’s a legal rule that discourages doing that, the Purcell principle, taken from a 2006 case where the Supreme Court rejected a Ninth Circuit decision to stop a new Arizona voter ID law from going into effect close in time to the midterm elections because it would create uncertainty, making it difficult for state officials to administer the election. Establishing that a party would be irreparably harmed is a key element under Purcell, and it’s difficult to imagine a more serious harm than having your vote tossed out even though you followed the rules.

So, why hasn’t the Court of Appeals ruled quickly? Why not reject the RNC’s request and ensure certainty ahead of the election? That would trigger the RNC’s ability to ask the Supreme Court to hear the case, but that Court could decline, letting a Fifth Circuit decision invoking Purcell stand. That’s what happened in another Fifth Circuit case in 2014 when the Supreme Court, in Veasey v. Perry, affirmed the decision to let Texas’ new voter ID act remain in effect for the November election, even though a district court held it was unconstitutional in October.  The Fifth Circuit, relying on Purcell and citing the difficulty of retraining poll workers so close to an election, permitted the law to remain in effect. The same rationale would seem to apply to keeping Mississippi’s five-day counting rule in place.

So, what’s taking so long? Although a month is not a great deal of time for a Court of Appeals to take before rendering a decision, in cases like this where there is urgency, they usually move quickly. And the conclusion here seems to be one that should be all but foregone less than two weeks before the election. So why the delay? Sometimes panels are just slow getting decisions out—the judges may have other earlier cases that require their consideration. Other times a delay can signal that one of the judges is writing a dissent.

There’s another option here that is concerning. The panel could reject the RNC’s request to change the rules for this election because of the Purcell principle, but give the argument about limiting voting to Election Day a boost for future elections. A decision like that could have drastic effects if adopted by the Supreme Court and as Georgetown Law Professor Steve Vladeck has noted, the Fifth Circuit is a court that “leans into its reputation as a welcoming home for right-wing litigation.” It has given the Supreme Court multiple opportunities to adopt rules that comport with conservative views, like it did with Dobbs, where the Court rejected fifty years of precedent and took away abortion rights.

More than twenty states have rules that permit ballots cast by Election Day to be counted if received later on. If the Fifth Circuit rejected Mississippi’s rule and the Supreme Court let that decision stand, it could throw all of those laws into jeopardy for future elections. It could also, depending on the rationale, go further. The RNC argued that Election Day meant Election Day, and that rationale, if taken far enough, could be extended to call into question rules that permit early voting, as well as late counting of votes. That would be an extreme read of the law, but it’s consistent with the argument the RNC made, and we are in a Circuit where extreme reads of the law aren’t uncommon.

People shouldn’t be forced to jump through hoops in order to vote, which is what restricting options for voting does. Few states are as extreme as Alabama, where you must vote in person on Election Day unless you sign an affidavit under oath that says you will be out of your county for work or too sick to vote in person on Election Day—only then can you obtain an absentee ballot. Rejecting early voting and late counting would seriously impair the right to vote. Not everyone is able to vote on a work day. Some people have children or parents to attend to or other matters that require their attention on the day of the election. If you want more people to be able to exercise their right to vote, then it makes sense to make it easier for eligible citizens to cast a ballot, not more difficult.

That’s exactly the point. Cases like this are part and parcel of Republican efforts to keep people they think won’t vote for them from voting at all. It’s been twenty years since Republicans last won the popular vote in a presidential election, and with that trend, they’ve turned to voter suppression, often justifying the adoption of rules that make it harder for people to vote by claiming they are necessary to prevent fraud—except that there’s no evidence of it. The argument in the Mississippi case is another strand of spaghetti they’re throwing against the wall to see if it will stick. Let’s hope it won’t.

Stay Informed,

Joyce