The following is a guest post from Michael Rosin:

Rick Hasen recently criticized Trump’s March 25 Executive Order for attempting to end the counting of mail in ballots received after election day. He noted that “the EO would try to take a Fifth Circuit opinion nationwide,” an opinion he had described as “bonkers.” The opinion and the Trump EO are not simply bonkers. They are contrary to the relevant statute and to Congress’s intent when crafting the relevant statutory text.

The relevant statutory text appears in Sections 202(d) and (g) of the Voting Rights Act Amendments of 1970. Section 202(d) requires each State to provide an absentee presidential ballot to

all duly qualified residents … who may be absent from their election district … in such State on the day such election is held and who have applied therefor not later than seven days immediately prior to such election and have returned such ballots to the appropriate election official of such State not later than the time of closing of the polls in such State on the day of such election. (Emphasis added)

Critically, Section 202(g) provides

Nothing in this section shall prevent any State or political subdivision from adopting less restrictive voting practices than those that are prescribed herein. (Emphasis added)

A review of the relevant congressional hearings makes it clear that Congress intended Section 202(d) to specify a floor, not a ceiling, for receipt of mailed in absentee ballots.

Section 202 is the brainchild of Barry Goldwater who told a Senate subcommittee that he sought to “secure the right to vote for President and Vice President for every citizen of the United States without regard to lengthy residence requirements or where he may be on election day.” His testimony listed 40 states whose statutes “expressly permit absentee ballots of certain categories of their voters to be returned as late as the day of the election or even later.”

Washington and Alaska were two states whose statutes allowed mail in absentee ballots to be counted if received after election day.

In 1933 Washington enabled mail in absentee ballot for the physically disabled. This statute required absentee ballots to be received by election day. A 1955 Washington statute extended mail in ballots to those who could not vote in person because of absence or religious reasons. Hand carried ballots had to be delivered on or before election day. Mail in ballots had to be postmarked no later than that but would be counted if received by the sixth day after election day. This is the law today.

In 1960 the first Alaska legislature enacted a law allowing absentee ballots to be counted if postmarked no later than election day and received by the tenth day after the election. In 1963 the legislature trimmed that back to eight days, a setting it reaffirmed in 1968. It has since been reset back to ten days.

In 1970 Congress knew that at least two states counted mail in absentee ballots received after election day. Surely, if Congress had intended election day to be an absolute cutoff date for receipt of mail in ballots some member would have commented on these states needing to amend their election laws. No one did.

The Fifth Circuit got it wrong. Election day is the earliest cutoff date allowed for receipt of mail in ballots in presidential elections. Section 202(g) makes it clear that a state can opt for a later cutoff date and when enacted Congress knew that at least two states had so opted.