Court says Mississippi can’t count late ballots, but…

JACKSON, Miss. (AP) – A conservative federal court said Friday that Mississippi cannot count mail-in ballots that arrive soon after Election dayalthough the decision was not expected to affect the November 5 election.

While the appeals judges strongly held that counting late ballots violates federal law, even if those ballots are postmarked by Election Day, the justices stopped short of an order immediately blocking Mississippi from continuing the practice. Their ruling noted that federal court precedents have discouraged lawsuits that change established procedures shortly before an election.

The final result may be negligible in most heavily Republican Mississippi elections, but the case could also affect voting in swing states.

The three-judge panel of the 5th U.S. Circuit Court of Appeals overturned a July decision by U.S. District Judge Louis Guirola Jr. that rejected challenges to Mississippi’s election law by the Republican National Committee, the Libertarian Party of Mississippi and others. The appeals court’s order sent the case back to Guirola for further action, but the matter may go to the Supreme Court.

The appeals court said its decision on Friday would not be returned to a lower court until seven days after the deadline for appealing their decision – which is usually at least 14 days – expires. This would put the effect of the decision well beyond November 5.

UCLA law professor Richard Hasen wrote on his election law blog that the appeals court’s decision was a “crazy opinion” and noted that “every other court dealing with these cases has rejected this argument.”

Republicans submitted over 100 processes challenging various aspects of the vote after being repeatedly convicted by judges in 2020 for bringing complaints about the way the election was conducted only after the votes were counted.

Republican National Committee Chairman Michael Whatley praised the decision for upholding “common-sense ballot safeguards” and said voters deserve “a transparent election that ends on November 5.”

Mississippi is one of several states with laws that allow mail-in ballots to be counted if they are postmarked by Election Day, according to National Conference of State Legislatures. The list includes swing states like Nevada and states like Colorado, Oregon and Utah that rely heavily on mail-in voting.

In July, a federal judge dismissed a similar lawsuit in Nevada. The Republican National Committee is asking the 9th Circuit Court of Appeals to revive that case.

Guirola wrote that the Mississippi law does not conflict with federal election laws. The lawsuit challenging Mississippi’s law argued that the state was improperly extending federal elections and that, as a result, “valid and timely ballots are diluted by untimely and invalid ballots.”

Guirola disagreed, writing in July that “no “final selection” is made after federal election day under Mississippi law. Everything that happens after Election Day is the delivery and counting of ballots cast on or before Election Day.”

Although the Mississippi challenge was led by Republicans and libertarians, there is bipartisan support for the Mississippi practice. Mississippi Attorney General Lynn Fitch is defending the state’s top election official. Secretary of State Michael Watson is a defendant in the case. Both are Republicans.

The members of the appellate panel that reversed Guirola were Judges James Ho, Stuart Kyle Duncan and Andrew Oldham, all nominated to the 5th Circuit by former President Donald Trump.

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McGill reported from New Orleans. Associated Press reporter Mark Sherman contributed from Washington.