Mail-in ballots that arrive after Election Day in Mississippi shouldn’t be counted, appeals court says

A federal appeals court ruled Friday that a Mississippi law allowing mail-in ballots to be counted if they are postmarked before Election Day — but received up to five days after Election Day — is pre-empted by federal law.

The ruling by the 5th U.S. Circuit Court of Appeals does not have any immediate impact on the current election because the three-judge panel of Trump appointees declined to issue an injunction blocking the counting of votes, and sent the case back to the lower court for further action.

It does, however, pave the way for a possible challenge that could go up to the U.S. Supreme Court, which could have ramifications for states that do allow ballots postmarked before Election Day to be counted.

The appeals court ruling says that no such ballots should be counted.

“Congress statutorily designated a singular ‘day for the election’ of members of Congress and the appointment of presidential electors,” the three-judge panel wrote in its opinion. “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 decision by Judges James Ho, Kyle Duncan and Andrew Oldham notes that as of November 2022, 18 states and the District of Columbia allow post-election receipt of ballots — and suggests they should not be allowed to do so.

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