Steve Vladeck on emergency election litigation at, or almost at, SCOTUS: RFK ballot access, PA provisional ballots, VA voter purge. He also says this about the 5th Circuit Mississippi ruling:

And then there’s the Fifth Circuit—which, in a case out of Mississippi, held late Friday that federal law bars all states from counting any mail-in or other absentee ballots unless they are received by Election Day. The ruling by the three-judge panel (Ho, Duncan, and Oldham) is nuts on its face (or, to quote UCLA Law Professor Rick Hasen, “bonkers”). That federal law fixes a date for elections does not thereby fix a date on which all votes must be cast (or else all early voting and mail-in voting would be unlawful). And even if it does fix a date by which all votes must be cast, it doesn’t remotely follow that the relevant deadline is when the vote is received—since the relevant act from the perspective of the person casting a ballot is the submission of the ballot, i.e., depositing it into a mailbox. Indeed, its rulings like this that are part of why the Fifth Circuit has developed such a … reputation.

The good news, such as it is, is that the ruling is, for now, almost certainly toothless. The panel specifically declined to order any particular remedy (perhaps because it knew that even the thinnest application of Purcell would require immediately freezing such a remedy). Instead, it remanded the case to the district court to decide what the remedy ought to be. And that remand won’t even become effective until the mandate issues—which may not be for quite some time if any of the affected parties seek rehearing en banc or Supreme Court review, which sure seems likely. Thus, even in Mississippi (the one state directly implicated by the ruling), mail-in ballots that arrive after Election Day will still likely be counted. Of course, if it turns out that there’s a federal election in Mississippi that turns on whether mail-in ballots arriving after Election Day should be counted, the Fifth Circuit could well step back in at that point. But the closest of Mississippi’s four U.S. House seats in 2022 was 60-40, with a margin of 36,401 votes (thanks, gerrymandering!); and something tells me that Senator Wicker’s margin in his re-election to the Senate won’t be even that close (let alone former President Trump’s margin in the state).

But whereas that “good news” helps to explain why it’s unlikely the Supreme Court will be dragged into this dispute this week or next, it is very likely that the Court will have to take up this case at some point—not because of its effects on the 2024 election, but because of the bigger, forward-looking question of whether federal law really does bar states from counting any remote votes that arrive after Election Day (besides Mississippi, 17 other states and the District of Columbia currently do so). In the meantime, the Fifth Circuit ruling will also provide fodder (to anyone looking for it) for claims of mischief if the margins are very close in any states that count such ballots. Indeed, especially because it’s almost certainly not going to have any effect in this cycle, it makes you wonder why the panel didn’t just hold off on issuing its ruling until after the dust had settled. Then again, it’s the Fifth Circuit.