Court Rules Against Law Allowing Ballots to Be Counted After Election Day, Effect May Be Huge in the Coming Days

In between former President Donald Trump’s sit-down with podcasting icon Joe Rogan and Vice President Kamala Harris’ Houston event with Beyoncé, there was other campaign news being made on Friday — and one quiet move could have serious impacts on which party controls Congress.

According to Politico, a three-judge panel of the New Orleans-based 5th Circuit Court of Appeals ruled that ballots for federal elections must be received by the state before or at the time the polls close on Election Day, ruling against a Mississippi law that allows late ballots to be counted.

“Text, precedent, and historical practice confirm this ‘day for the election’ is the day by which ballots must be both cast by voters and received by state officials,” the court wrote, according to NPR.

“Because Mississippi’s statute allows ballot receipt up to five days after the federal election day, it is preempted by federal law.”

All three judges on the panel were appointed by former President Trump. The suit was filed by the Republican National Committee and the Trump campaign. The RNC called it a “major win for election integrity.”

It’s unclear whether the ruling will apply in this election or in future ones; a lower-court judge who initially sided with the state of Mississippi over the law will be given purview in deciding when the move takes effect.

The court rejected a GOP request to place an injunction against the law, saying the lower court would handle “further proceedings to fashion appropriate relief, giving due consideration to ‘the value of preserving the status quo in a voting case on the eve of an election.’”

However, if it does apply during this cycle, it could affect the Democrats’ chances in at least one major race, Politico noted.

“For now, the circuit court’s ruling only applies to Louisiana, Texas and Mississippi — a list that does not include any core presidential battlegrounds but includes a key Senate race,” the publication noted.

“It also tees the issue up for the Supreme Court, where a similar ruling would have a far more dramatic impact.”

The race in question is between Sen. Ted Cruz and Rep. Colin Allred; if the ruling is put into place this year and late mail-in ballots favor the Democrats, it could spoil whatever chances Allred had at the seat.

While Cruz remains the prohibitive favorite in the race, he’s still only up by a slim margin in the polls. The RealClearPolitics aggregate, as of Friday, had him ahead by 4.2 points, 49.6 percent to 45.4 percent.

However, Allred did out-fundraise Cruz in the third quarter and hoped to get a boost from Harris’ visit to the Lone Star State with Queen Bey, as evinced by his appearance at the rally.

Texas Democratic Senate candidate Colin Allred isn’t running away from the top of the ticket: “I want to thank Vice President Harris for coming to this state” pic.twitter.com/mxNn0HWCNo

— Jennifer Epstein (@jeneps) October 26, 2024

The impact is mostly limited this cycle in the House; only one of the 50 most competitive races, as per the Cook Political Report, is in those states: One border seat in Texas currently held by a Democrat, Rep. Vicente Gonzalez, which they have as a “Lean Democrat” race.

However, Cruz vs. Allred will be important in deciding who decides the upper chamber; with the GOP all but certain to pick up retiring independent Sen. Joe Manchin’s West Virginia seat and also likely to win in Montana, that would leave them with a 51-49 edge even if the Democrats were able to hold the rest of their swing seats.

An upset of Cruz would leave the Senate even again at 50 all, with ties broken by the vice president. And, as the RNC noted in its suit, “voting by mail is starkly polarized by party.”

“For example, according to the MIT Election Lab, 46% of Democratic voters in the 2022 General Election mailed in their ballots, compared to only 27% of Republicans,” the challenge to the law read. “That means the late-arriving mail-in ballots that are counted for five additional days disproportionately break for Democrats.”

Granted, there will probably be a bevy of appeals in this case — and Supreme Court involvement could mean this has a much wider impact in future elections.

“Roughly 20 states plus Washington, D.C., accept and count mail-in ballots that are received after Election Day. (Many states require that those ballots be postmarked on or before Election Day),” NPR noted.

“States provide these grace periods in case voters forget to return their mail ballots in a timely manner, if there are issues with the postal service, or if there are other unforeseen issues like bad weather and natural disasters.”

However, Conor Woodfin — who represented the RNC in the suit — said that “the meaning of Election Day is not up to the subjective views.”

“For decades after Congress established the uniform national Election Day, those words meant the day that ballots are received by election officials,” he said.

Which makes this whole case a salient object lesson: Election Day is Election Day, not “Election Month” or “Election Season.” One can only hope that other courts — including the highest court in the land — recognizes this salient fact and makes mail-in and early voting more restrictive, not less.

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