A voter rushes into this north Jackson, Miss., election precinct to cast his ballot during Mississippi’s party primaries, Tuesday, March 12, 2024 (AP Photo/Rogelio V. Solis).
The Republican National Committee‘s lawsuit challenging the law allowing the counting of electoral ballots in Mississippi up to five days after an election, so long as they are postmarked on or before Election Day, has failed.
The 24-page order was handed down on Sunday by U.S. District Judge Louis Guirola Jr., an appointee of former President George W. Bush.
The lawsuit was first filed in January by the RNC, the Mississippi Republican Party and individual Republican voters James Perry and Matthew Lamb. Perry is a current member of the Hinds County Republican Executive Committee and Perry is a longtime member of the Mississippi Republican Party’s executive committee. Court records show the case was later consolidated with a similar lawsuit brought by the Mississippi Libertarian Party in February.
The RNC and their co-plaintiffs essentially argued that Mississippi’s deadline to accept mail-in ballots up to five days after Election Day — even with postmarking showing this — was a violation of federal law as well as their individual First and Fourteenth Amendment rights. The deadline, they argued, diluted the power of Republican voters who they say overwhelmingly vote in person and not by mail.
They also alleged that the deadline — which was enacted in 2020 with bipartisan support — put an unfair burden on them. For example, the RNC’s political director James Blair claimed that the state’s acceptance of ballots five days after Election Day “forces the RNC to spend more money on ballot-chase programs and poll-watching activities” rather than in-person efforts.
The deadline diverts their resources to “separate, parallel get-out-the-vote effort supported by training, voter education, and voter outreach,” they claimed.
Vicky Hansen, a lifetime member of the Libertarian Party who also serves as a chairperson for the group’s membership committee, told the court that the mail-in deadline unfairly forces Republicans and Libertarians in Mississippi to diminish their canvassing and that the deadline imposed additional “time and duties,” like the roping in of more volunteers.
“Our other option is to drop the ball — that is, not do — either post-election canvassing or some other campaign[-]related task,” Hansen wrote in a supplemental declaration cited in Guirola’s order.
But Guirola explained that the Electors Clause of the Constitution states it is Congress that determines the time, manner and place of voting but with the understanding that the clause “invests the States with responsibility for the mechanics of congressional elections,” too. As such, Congress enacted three statutes to establish a single Election Day for federal elections.
Legislative history has shown, he wrote, that Congress wanted a uniform period to cast votes for numerous reasons: to prevent early elections in some states from “unduly influencing the later voters,” to prevent voter fraud, or practically speaking, to avoid “the burden of voting in more than one federal election in a given year,” the order notes.
While the Fifth Circuit has yet to consider whether ballots received after Election Day may be counted, Guirola noted that the Fifth Circuit did hold in the 2000 case Voting Integrity Project, Inc. v. Bomer that allowing some people to cast votes before Election Day “does not contravene the federal election statutes because the final selection is not made before the federal election day.”
States are given “wide discretion” to decide how they can form a system for voting but the Fifth Circuit — nor Guirola — believe that Congress ever intended for federal Election Day statutes to have the effect of “impeding citizens in exercising their right to vote,” the judge wrote.
Those named as defendants to the RNC’s lawsuit, specifically, Justin Wetzel, a clerk for the Circuit Court of Harrison County, have argued that the ruling in Bomer meant that the Mississippi statute is not preempted by federal law because it does not directly conflict with Election Day statutes.
The RNC says it isn’t about a direct conflict per se, but more that it is about state statutes being “inconsistent” with federal ones. They pointed to the 2013 Supreme Court decision Arizona v. Inter Tribal Council of Arizona to support their gambit, but in a footnote in his order, Guirola noted the plaintiffs “cite no authority” that separates “direct conflict” and “inconsistency.”
“It appears the Fifth Circuit does not view the standards set forth in Inter Tribal and Bomer as conflicting because it cited both standards in Voting for America, Inc. v. Steen (2013),” the judge explained.
Judges on the Fifth Circuit did however look all the way back to the 1921 Supreme Court decision in Newberry v. United States and then to the 1997 decision in Foster v. Love, to determine the express meaning of the word “election.”
While there may be room for argument on what constitutes the “final act of selection” for a voter, the fact remains that:
[T]he plain language of the statute does not require all voting to occur on federal election day. All the statute requires is that the election be held that day … Allowing some voters to cast votes before an election does not contravene the federal election statutes because the final selection is not made before the federal election day … [T]his conclusion is consistent with the [Foster] Court’s refusal to give a hyper-technical meaning to ‘election’ and its refusal to [pare] the term ‘election’ in § 7 down to the definitional bone.
Likewise, Guirola ruled, voters are not making a choice after Election Day; all that occurs after Election Day is the delivery and counting of ballots.
The RNC tried arguing that ballots aren’t technically “cast” until in the hands of election officials but the judge said they failed to support this argument because they only clung to an unsupportive single state-court ruling from Montana issued in 1944.
Consider the situation of an overseas absentee voter instead, Guirola explained. Like every other voter, they too cast their vote on Election Day but the only difference is when their ballot is counted.
While the RNC and their co-plaintiffs were found to have standing to bring their claims, the merits were rejected because Mississippi’s deadline is not in conflict with the Electors Clause of the Constitution so no violation of the plaintiffs’ constitutional rights occurred, Guiorla ruled.
If the RNC appeals, the question will go to the conservative-leaning Fifth Circuit.
An attorney for the plaintiffs did not immediately respond to a request for comment on Monday.
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