An election-law case about to be heard by a conservative federal appeals court panel in New Orleans could — if it reaches the Supreme Court — invalidate millions of absentee ballots in numerous states, including California.
The Republican National Committee and the Libertarian Party are challenging a Mississippi law that, like laws in a majority of states, allows votes cast by mail to be counted if they are postmarked by Election Day and received by a specified deadline — within five days in Mississippi, seven days in California and up to 14 days in other states.
The suit contends that an 1845 federal law designating Election Day as the Tuesday after the first Monday in November meant that the election must be conducted that day and that ballots received later would not be counted.
“For well over a century virtually every State understood election-day as ballot-receipt day,” Thomas McCarthy, a lawyer for the Republican National Committee, said in a court filing. “A post-election receipt deadline for mail ballots necessarily extends ‘the election’ beyond the single day chosen by Congress.”
The law was upheld in July by U.S. District Judge Louis Guirola, an appointee of President George W. Bush. Citing past rulings allowing states to regulate elections, Guirola said the purpose of a uniform nationwide Election Day was to avoid “burdening citizens with multiple election days” and allowing voters in one state to be influenced by announced results in other states.
“Neither of those concerns is raised by allowing a reasonable interval for ballots cast and postmarked by election day to arrive by mail,” Guirola wrote.
But the randomly selected panel in Tuesday’s hearing before the 5th U.S. Circuit Court of Appeals will consist of three of its most conservative judges — James Ho, Kyle Duncan and Andrew Oldham, all appointees of former President Donald Trump.
The court shortened its usual timetable for filing written arguments, a possible indication that it plans to decide the case before this year’s election. The three states in the 5th Circuit, Mississippi, Louisiana and Texas, all have Republican majorities.
But if the court overturns the Mississippi law, the case would most likely wind up in the Supreme Court, whose conservative majority could invalidate all such laws nationwide.
It seems “highly unlikely” that even this appeals court panel would prohibit a state from counting ballots received after Election Day, said Charles Stewart III, a political science professor at Massachusetts Institute of Technology. But if that should occur, he said, “the urgent national implications would be such that the Supreme Court would undoubtedly take it up, and through that path, it could affect California.”…