Last week the U.S. Court of Appeals for the Fifth Circuit issued a ruling in Republican National Committee (RNC) v. Wetzel holding invalid, as conflicting with and thus preempted by federal law governing federal elections, a Mississippi statute that permits the counting of ballots that arrive at election offices by mail after Election Day—up to five business days after—so long as the ballots are postmarked on or before Election Day itself.
As we have argued in two previous columns that readers can consult for more background, here and here, we think the case against Mississippi’s statute, brought by the Republican National Committee (RNC) and others, is weak as a matter of law and defies common sense. But in reversing the district court (which had essentially agreed with us), the Fifth Circuit found otherwise.
First the good news: The RNC ruling has no effect on the November 2024 election, because even the Fifth Circuit recognized, as it had to, that October 25, 2024 (the date of its ruling) was too late in the election season to upset settled expectations voters might have going into Election Day 2024. As the Fifth Circuit explained: “Today’s decision says nothing about remedies. . . . [W]e remand to the district court for further proceedings to fashion appropriate relief, giving due consideration to ‘the value of preserving the status quo in a voting case on the even of an election.’” In this regard, the Fifth Circuit cited to, among other things, the Supreme Court’s ruling in Purcell v. Gonzalez, which has come to stand for the notion that federal courts should not issue remedies that could create, close to an upcoming election, confusion on the part of state election officials, voters, candidates, and campaigns.
Indeed, it is not clear that the RNC decision will ever apply to any federal election. As we explain below, we think there is a good chance the Supreme Court will undertake review, and reverse the Fifth Circuit so that the ruling won’t have any effect even in the states covered by the Fifth Circuit (Texas, Louisiana, and Mississippi), before the 2026 congressional elections. (And the Fifth Circuit’s invalidation of Mississippi’s attempts to count ballots postmarked by Election Day but that arrive shortly after has no relevance to ballots cast for state offices, since the federal statutes on which the Fifth Circuit relies speak only to federal elections.)
Now the bad news: The RNC ruling is yet another poorly reasoned opinion coming from the Fifth Circuit, adding to the Circuit’s growing reputation as a rogue and analytically careless court.
Why do we say that? Because its reasoning was thin and sloppy, and it didn’t address the best arguments on the other side.
The Fifth Circuit proclaims that Congress’s designation in federal statutes of a federal “Election Day” (a single date) means that, by the end of that day (right as the clock strikes midnight, apparently) there must, with respect to the choice among the candidates on the ballot, be: (1) official action; (2) finality; and (3) consummation. Official action (the involvement of government officials and not just voters) and consummation (the notion that an election cannot conclude prior to Election Day) do not figure very prominently in the Fifth Circuit’s analysis. The discussion of finality, by contrast, seems to house the crux of the Fifth Circuit’s reasoning. Why does the counting of votes that were submitted before or on Election Day (but that arrive a bit later) violate the requirement that Election Day embody the concept of finality? The court says, without much elaboration, that a voter’s ballot is not cast and is thus not final until “the State takes custody of it,” and that “custody” must mean actual arrival at the election officials’ offices. We see many problems with this. First, as we explained in our earlier writings, the RNC and the Fifth Circuit majority have no robust answer to the suggestion that Mississippi has the power to deem ballots that are securely in the United States mail system to effectively be in the custody of the state addressee:
To the extent that Congress’s choice of a uniform election date serves the interest in finality (and we think it obviously does), then what matters is that voters make their final choice by or on Election Day, and that such choice is reliably conveyed to election officials. In-person voting on Election Day serves that interest. But so too does marking the ballot and putting it in a secure mail system on Election Day. In both instances, the final choice is made by the date Congress has set. States have broad leeway to determine how and when ballots, marked by Election Day, are returned (and there is significant variation in state practices). Many states set up secure drop boxes around town for the return of ballots. . . . [I]t would be odd to think that unless the state empties out the boxes before midnight on Election Day the ballots inside cannot be counted. A state could surely just seal the boxes at the end of Election Day (so that no more ballots can be deposited) and then send a truck to collect the ballots [the next day] and bring them to election offices for counting. If a state can do that, we see no reason why a state cannot decide to treat ballots in the possession of the United States Postal Service (USPS) or similarly reliable common carriers in like fashion. If (as the plaintiffs insist) custody is what matters and a state can say it considers a ballot to be in its custody if the ballot is sitting in a metal drop box on Main Street, why can’t the state say it considers a ballot to be in the state’s custody if the ballot is in the secure possession of a federal mail truck?
Second, and relatedly, the Fifth Circuit offers no real answer to Mississippi’s analogy to a “mailbox rule” akin to that which allows tax returns to be considered in compliance with federal law so long as they are postmarked by a certain date, even if they arrive at IRS offices sometime later. All the Fifth Circuit says is that “voting is not a . . . tax return.” But that’s not an answer to the real question, which is: What reason would there be to think Congress, in designating an Election Day, would have a different mindset than it does when it designates a Tax Day?
Certainly, the answer to that question can’t be that Congress expects states to finish counting by the end of Election Day. Indeed, the Fifth Circuit (rightly) disclaims any such requirement: “[This] is not to say that all the ballots must be counted by Election Day.” But concession is not explanation, so the Fifth Circuit adds: “Even if the ballots have not been counted, the result is fixed when all the ballots are received and the proverbial ballot box is closed.” But if this reasoning is valid, why wouldn’t it also be accurate and valid to say that “the result is fixed when all the ballots are dropped in a dropbox, a mailbox, or a voting-precinct collection box”? After all, once a ballot is out of the voter’s hands and on its unalterable way to being counted, the die is cast.
What’s the Fifth Circuit answer to that? Here (and we’re not making this stuff up) is what the opinion says: “By contrast, while election officials are still receiving ballots, the election is ongoing. The result is not yet fixed, because live ballots are still being received.” In other words, the election is still ongoing (and not thus final), because there is an ongoing election. Talk about tautologies.
The one, teeny factoid the Fifth Circuit gestures at that might explain (in a way the Fifth Circuit never does) why votes dropped in the mail system before Election Day but arriving a few days after might be different from votes that have already arrived by Election Day is that the former might technically be “recalled” while in the United States Postal Service (USPS) system. If a voter spends the money to add USPS tracking information to a mail-in ballot, under some circumstances USPS might, for a fee, be able to retrieve a piece of mail and return it to the sender after it is post-marked but before it is out for delivery. So, perhaps in theory a voter could drop a ballot in the mail on Election Day, learn the election results in neighboring states the next day, and then seek to pull back his ballot from USPS before it arrives at the election officials’ offices. Such a pullback would not, of course, permit the voter to change his vote to a different vote, though perhaps in theory he could nullify his already-cast vote. But as far as we know, the record does not disclose that anyone has ever in history successfully done this, or whether Mississippi has directed/requested USPS to eliminate any possibility of this recall service with respect to mail addressed to state election offices. (USPS does not offer this service with respect to all addressees.) So the notion that this theoretical possibility (as to which there is no evidence of any actual track record) means that Congress would not want states to be able to decide for themselves whether to receive and count ballots postmarked by Election Day that arrive thereafter (as many other states in addition to Mississippi do) seems pretty far-fetched. Certainly no one has suggested Congress ever discussed or was aware of this theoretical possibility of recall. (And more generally the federal government has known of state laws like Mississippi’s for years and has never taken issue with them.)
The Fifth Circuit’s ruling, if embraced by other Circuits, would affect more than a dozen states, and so the Supreme Court should definitely be interested in resolving before 2026 the permissibility of counting federal ballots postmarked by Election Day but arriving a few days thereafter. Before the high Court accepts review, to be on the safe side states like Mississippi should (if they haven’t done so already) close the tiny loophole discussed above, by entering into agreements with USPS (and other common carriers authorized to return ballots to election officials) to do away with any recall service with respect to ballots. With that small wrinkle (which is one, to be clear, that the Fifth Circuit mentions only as an additional aside) ironed out, this should be yet another case in which the Supreme Court undoes a mess created by the Fifth Circuit.
