In a controversial recent ruling, a panel from the Fifth Circuit comprised of judges Andy Oldham, James Ho, and Stuart Kyle Duncan, has redefined the term “Election Day” to mean that not only must ballots be cast by the day but also received by its close. This interpretation aligns with efforts by the GOP to challenge and, potentially, suppress mail-in voting, a method increasingly adopted amid the COVID-19 pandemic. The ruling dismisses Mississippi state law allowing ballots postmarked by Election Day yet arriving later, asserting an interpretation of federal law that supersedes state provisions, much to the chagrin of those advocating for a broader state discretion in managing elections.
This ruling intriguingly draws upon a textual analysis that deviates from traditional interpretations and appears to craft new precedent without substantial statutory backing. As Professor Steve Vladeck notes, the federal law setting an election date has never been interpreted to eradicate all state autonomy over procedures involving mail-in ballots cast by Election Day. The judgment, therefore, raises significant questions about the federalism principles it purportedly upholds.
The opinion issued by the Fifth Circuit seems to conflict with how laws have historically been applied, especially concerning military ballots, which have been counted despite delays inherent in past communication methods. The judges’ rationale, according to critics, including a report from Slate, exposes a political maneuvering that could influence future electoral processes by injecting uncertainty and potentially invalidating timely but delayed mail-in ballots.
Observing these developments, one could argue this decision only compounds the uncertainty surrounding mail-in voting, a process foundational to ensuring voter accessibility and participation. And with the ruling’s ultimate implementation postponed pending further district court action, legal analysts and voting rights advocates are closely monitoring its impact on upcoming electoral cycles. Despite not becoming immediately actionable, the ruling’s broader implications remain, as it symbolically arms narratives contesting electoral legitimacy, as highlighted in a critique by Above the Law.