About two weeks ago, the entire United States Court of Appeals for the Fifth Circuit, by a 10-5 vote, declined to exercise en banc review of an important 2024 voting-rights case, Republican National Committee v. Wetzel. Last fall, as the two of us explained in a November 1, 2024 Verdict article (which in turn links to earlier analyses here and here of the issues presented), a three-judge panel of the Fifth Circuit held invalid 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. According to the three-judge ruling, the Mississippi statute conflicted with, and was thus preempted by, federal law. Under that panel ruling, Congress’s designation in federal statutes (2 U.S.C. § 7 and 3 U.S.C. § 1) of a single federal “Election Day” means that even though counting of votes may take many additional days, by the end of that Election Day: (1) all votes must be cast; (2) a voter’s ballot is not cast and is thus not final until “the State takes custody of it;” and (3) “custody” means actual arrival at the election officials’ offices.
As we explained in great detail in our earlier writings, we think the Fifth Circuit panel’s reasoning is thin and unconvincing. In particular, the panel provides no good answer to the question why, particularly given that (as one of us has discussed in a recent law review article) most ballots are, on account of permissible early voting, now submitted before rather than on Election Day, states can’t consider ballots that are en route through the U.S. mail (or other secure systems) to be in the states’ custody (akin to the mailbox rule for contracts and the filing of tax returns), just as ballots placed in a secure state dropbox by midnight would plainly be in the state’s custody even if the dropbox is not actually emptied until the day after Election Day. We see no evidence that Congress’s enactments deny states this flexibility, especially since statutes like that of Mississippi are common and have been in effect for a long time and Congress hasn’t sought to alter state practices in this regard. In light of the generally robust commitment to state, rather than federal, administration of elections, even federal elections, as reflected in Articles I and II of the Constitution, we are far less inclined than was the Fifth Circuit panel to displace long-standing state practices that do not seem to risk fraud or corruption of elections. (One of the Fifth Circuit opinions dissenting from the denial of en banc review makes similar points.)
We wrote last fall that the reasoning of the Fifth Circuit panel ruling, if embraced by other circuits, would directly affect more than a dozen states, and for that reason we think the Supreme Court should definitely be interested in resolving before the fall of 2026 the permissibility of counting federal ballots postmarked by Election Day but arriving a few days thereafter. Now that the Fifth Circuit, in denying en banc review, is done with the case, it will be interesting to see whether the Mississippi state defendants seek, and the Supreme Court grants, review in the Wetzel matter.
But even if the Court does not take up the Wetzel case, Supreme Court review of the underlying issue—that is, the interpretation of federal law designating a federal Election Day—is quite likely in the foreseeable future on account of another, related development last week: President Trump’s Executive Order concerning state administration of federal elections. Entitled “Preserving and Protecting the Integrity of American Elections,” the Order, dated March 25, 2025, has gotten a lot of media attention for its provisions that purport to “Enforc[e] the Citizenship Requirement for Federal Elections” by requiring people who register to vote to provide certain forms of identification such as a U.S. Passport or REAL ID card. But a less publicized set of provisions in the Order relate to the receipt of ballots on Election Day. The Order reads 2 U.S.C. § 7 and 3 U.S.C. § 1 as “requir[ing] that votes be cast and received by the election date established in law” (emphasis added). In this respect, the Order tracks, and actually cites to, the Fifth Circuit panel ruling from last year. The Order goes on to say that “[i]t is the policy of [this] Administration to enforce [both directly and by means of withholding federal funding] those statutes . . . [even though] numerous states fail to comply with those laws by counting ballots received after Election Day. This is like allowing persons who arrive 3 days after Election Day, perhaps after a winner has been declared, to voting in person at a former voting precinct, which would be absurd.” We agree there is absurdity afoot here, but it lies in the Order’s equation of casting a postmarked ballot by election night and casting an in-person ballot three days later. Whatever one thinks of the meaning of federal statutes and the arguments in favor of and against the Fifth Circuit’s holding, these two things are not remotely the same. Not even the Fifth Circuit made such an assertion.
Given that many other states (besides Mississippi) are directly affected by the Executive Order, we expect there to be much litigation over the Order’s legality. Some of the litigation will focus on the proof-of-citizenship provisions, and some on the President’s power to impose funding conditions. But some will also focus on precisely how Congress’s designation of a federal Election Day does or does not limit states’ flexibility with regard to the counting of ballots that are postmarked by midnight but collected shortly thereafter. And when, as we expect, the Supreme Court takes up this issue, we hope the Justices will carefully consider the arguments we have advanced in our prior writings.
One of the Fifth Circuit judges who voted against rehearing en banc, Judge James Ho, may not find our arguments worth examining. Judge Ho (who was also on the original three-judge panel that decided Wetzel) wrote an opinion concurring in the denial of rehearing en banc in which he took direct aim at a dissenting opinion by his Fifth Circuit colleague Judge Stephen Higginson. Judge Higginson suggested that one reason to be open to en banc review was a critique of the three-judge panel decision from a “topflight” non-party lawyer, whose views Judge Higginson found helpful. Quoting former Chief Justice William Rehnquist, Judge Higginson observed that “‘informed criticism’ of court opinions from lawyers unaffiliated with the parties is in [the] vital tradition . . . . ‘of public engagement with the courts that results in a better-informed policy and a more robust democracy.’” Judge Ho, by contrast, found the input of prominent outside lawyers to be less relevant because of his belief that such input “may just reflect the institutional bias at many of the nation’s largest law firms.” Judge Ho observed that “major law firms consistently favor one side in highly charged disputes like this one . . . and are [thus] falling short of ‘the great traditions of the profession.’” In this regard, Judge Ho is echoing, and likely associating himself with, the actions of the Trump administration in seeking to exclude certain large law firms from doing business with the federal government (and even from accessing federal buildings) on account of past positions these firms have advocated in representing clients against President Trump or his interests.
Perhaps Judge Ho would find the two of us, as members of the legal academy, to be plagued by “institutional bias.” We fully acknowledge (as each of us has explained in depth, here and here) that many academics these days, on both ends of the spectrum, are way too partisan in their scholarship, and that this creates a problem not just for the legal academy but for the bench that needs our input. The two of us try to avoid falling into that pitfall; each of us has expressed a variety of constitutional views, many of which might be thought of as “conservative” and many of which are more likely to be considered “liberal,” on topics such as federalism, separation of powers, individual rights, and methods of constitutional interpretation. But as we continue to try to be straight shooters—honest brokers—we can’t help but notice that Judge Ho himself and his Fifth Circuit colleagues might examine their own institutional open-mindedness. All ten of the judges who voted to deny rehearing en banc (in an undeniably important case) are Republican appointees and all five who voted in favor of rehearing are Democratic appointees. We don’t share the view of some commentators that judges regularly decide cases based primarily on their own policy preferences. But whatever the reason for the 10-5 split, it surely risks an impression of partisanship. The fair-minded critic might conclude, Fifth Circuit Court of Appeals, that when it comes to institutional bias, the biblical advice Jesus offered—“Physician, heal thyself!”—is something that judges, too, should heed.
