Three Trump appeals court judges will consider a case that could limit mail-in voting

(CNN) — Republicans are suing over the mail ballot policies of Mississippi – a non-battleground with limited, excuse-only absentee voting – to tee up a case, being heard by three Donald Trump-appointed appeals court judges Tuesday, that could jeopardize mail ballots cast elsewhere in the country.

The Republican National Committee and others allege that Mississippi is violating federal statute by counting mail ballots that arrive within five days after Election Day as long as they’re properly postmarked – a practice that resembles laws in roughly 20 other states and jurisdictions, including states that may be pivotal in determining who controls the White House and Congress.

Among the states that allow for late-arriving ballots are Nevada, Ohio and Virginia, as does Maryland, the site of a competitive Senate race. Also allowing for post-election ballot receipt is California and New York, both states that could make a major difference in which party controls the House.

Though other courts, including the trial judge in the Mississippi case, have upheld the discretion states to count ballots mailed by Election Day that don’t make it to election officials until a set period after, this case is being heard Tuesday by a far-right panel of judges on the 5th US Circuit Court of Appeals – and could end up on the Supreme Court’s docket before November’s election.

Mississippi is not the only state where this approach is being litigated. But by bringing a case against Mississippi, the RNC has navigated the dispute to a friendly forum more likely to give Republicans a ruling they could use to boost similar challenges elsewhere.

“It’s a clever strategy,” said Derek Muller, a Notre Dame Law School professor specializing in election law. “You’re looking for the circuits that are going to be most hospitable to your claims.”

The Supreme Court – via a doctrine known as Purcell – typically discourages judicial actions that change voting rules when an election is near, which will be a hurdle the Republicans will have to overcome even if they can convince courts their arguments are right on the merits.

Still, the “Purcell principle” has been inconsistently applied by the justices. And a 5th Circuit precedent against Mississippi’s policy could be touted by Republicans in the event they try to challenge a state’s count after the election.

In 2020, Justice Samuel Alito ordered Pennsylvania to segregate mail ballots arrived after Election Day because of potential litigation around their validity (though in that case, the ballots were being challenged under a different legal rationale than the current lawsuit.)

But before the Mississippi case potentially reaches the high court, it will be heard Tuesday afternoon by a panel of three members of the 5th Circuit judges – Judge James Ho, Kyle Duncan and Andrew Oldham – who are all very conservative Trump appointees.

Donald Trump has not let go of his 2020 rhetoric railing against mail voting  – insisting at times that elections should be “one-day voting” by “paper ballots” – even as he and the Republican party have at other times this cycle encouraged their voters to cast ballots early, including by mail.

Dispute over federal law

Republicans allege that Mississippi’s mail ballot policy violates the 19th Century federal statute that sets Election Day for the Tuesday after the first Monday in November, arguing that, in effect, the law requires that “ballots must be placed in the custody of election officials by the congressionally mandated date.”

Their opponents – which include the Justice Department and the Democratic National Committee, which have each filed their own friend-of-the-court briefs – counter that the RNC is reading into the statute a ballot receipt mandate that isn’t there.

They note that, even as nearly half the states adopted post-Election Day receipt deadlines, Congress has not passed legislation to push back against the practice. And a law Congress passed in 1986 that dealt with overseas and military battles seemed to accept some states count ballots that arrive after Election Day if they are put in the mail by Election Day.

“To have people’s votes discounted and disregarded – at no fault of their own – because the Postal Service or a storm or something happens that interferes with the timely delivery of mail – that happens in red states as much as it happens in blue states,” DC Attorney General Brian Schwalb, a Democrat who supports the Mississippi law, told CNN.

An area of dispute in the legal arguments is whether the post-Election Day receipt deadlines are a longstanding practice, or a relatively recent phenomena. One question the 5th Circuit panel may be interested in exploring Tuesday is how Congress understood the meaning of an Election Day when it passed the 1845 statute at the heart of the case.

“This issue has become pervasive in the last 20 years,” said Russell Nobile, a senior attorney for Judicial Watch, which is representing challengers to the Mississippi deadline and, in a separate case challenging Illinois’ policy of accepting late arriving ballots.

“It causes a lot of reasonable people to question the outcome of elections, when ballots are coming in, when that’s a new practice,” Nobile said.

Potential fallout

Mississippi requires an excuse to vote absentee, meaning that a ruling striking down the practice of accepting late-arriving ballots would have a limited effect in the state; in the 2020 general election, more than 80% of Mississippi voters cast ballots in person.

However, in other states, ending the acceptance of late-arriving ballots could have a bigger impact. Washington state, which conducts its entire election by mail, more than 400,000 ballots that were counted in the 2022 midterms arrived after Election Day.

“There are people who are comfortable and familiar with their past experiences of returning their mail ballots close to Election Day or on Election Day, knowing the state will accept those ballots,” said University of Florida political science Professor Michael McDonald. A ruling ending that practice “is going to be disruptive to them.”

There is also data, according to McDonald, suggesting that at least in some states, last-minute voters are more likely to be either unaffiliated or Republican, rather than reliable Democrats.

The Republican National Committee did not provide comment for this story, but a spokesperson previously told the AP that the case “could have major ramifications in future elections — not just in Mississippi but across the country.”

If the 5th Circuit agrees with Republicans that federal law forbids states from accepting ballots that arrive after Election Day, at the very least that ruling will be cited in any case brought to challenge similar policies in other states. It would bind courts in states covered under the 5th Circuit, including Texas, which counts ballots arriving by 5 p.m. the day after Election Day if they are postmarked by Election Day, but courts in other circuits could chose to ignore the 5th Circuit’s reasoning.

However, the stakes get higher if the case goes up to the Supreme Court on emergency appeal. While it’s not likely there’d be enough time for the justices to resolve the dispute on the merits, if they refused a pause a ruling that strike down Mississippi’s current rules, that would super supercharge litigation elsewhere to block post-election receipt deadlines.

Schwalb, the DC attorney general, called the Mississippi lawsuit “part of a very shrewd and misplaced strategy by the RNC to try to suppress the vote by filing lawsuits in courts where they think they’re going to be successful, and rolling it out to a broader audience, either through the Fifth Circuit or up to the Supreme Court to create national precedent.”

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