A new Trump administration Justice Department could enforce a federal court’s ruling requiring only ballots arriving on or before Election Day to be counted, voter integrity advocates said.
Just weeks before last November’s election, the U.S. 5th Circuit Court of Appeals ruled in a case from Mississippi that federal law requires mail-in ballots to arrive by Election Day. Mississippi had allowed counting ballots that arrived up to five days after Election Day.
Yet at least 17 states and the District of Columbia allow mail-in ballots rolling in days and weeks after Election Day to be counted.
“States should look carefully at the 5th Circuit decision and see that federal law is clear that ballots should arrive by Election Day,” J. Christian Adams, president of the Public Interest Legal Foundation, told The Daily Signal.
The legal foundation has sued in other states and filed an amicus brief in the 5th Circuit case in which the Republican National Committee, Mississippi Republican Party, and two registered Republicans sued Mississippi.
“The biggest mistake is for states to allow absentee ballots to come in and be counted after the election. And, in fact, I believe that is a violation of federal law,” Hans von Spakovsky, manager of the Election Law Reform Initiative at The Heritage Foundation, told The Daily Signal, referring to the 5th Circuit decision.
“My advice to the Trump administration is that they should take that [ruling] and file litigation against every state in the country that is violating the one day [Election Day] federal statute,” von Spakovsky continued, referring to
The Justice Department didn’t immediately respond to inquiries from The Daily Signal for this story.
The 5th Circuit covers the states of Mississippi; Texas, where state law allows ballots arriving one day after Election Day to be counted; and Louisiana, which requires mail-in ballots to arrive one day before.
The October ruling by the three-judge panel of the 5th Circuit says: “Federal law does not permit the State of Mississippi to extend the period for voting by one day, five days, or 100 days.”
‘Either Side of Election Day’
The ruling gave clarity to what’s already federal law, said Cleta Mitchell, chair of the Election Integrity Network.
“Federal law states that Election Day for federal elections is the first Tuesday after the first Monday in November of even numbered years. That’s the federal statute,” Mitchell told The Daily Signal. “Election Day should be that: Not election month on either side of Election Day.”
She added that late counting of votes could be a matter for Congress to address.
“I’m very hopeful that Congress will strengthen the concept of Election Day by prohibiting the counting of ballots received after Election Day and halting the process of starting voting weeks and weeks before Election Day,” Mitchell said.
The ruling didn’t strike down the Mississippi law for the 2024 election, and in the immediate future, it might only affect the three states in the 5th Circuit. Though, unless it’s overturned by either the full circuit or the Supreme Court, it is the highest court to rule on the matter, said Adams of the Public Interest Legal Foundation.
“Ballots can’t roll in for days after the election,” Adams said. “Unless or until that’s overturned, federal law is now clear. The deadline for ballots to arrive is Election Day.”
Where Other States Stand
Illinois and Utah will count ballots arriving 14 days after Election Day, according to the National Conference of State Legislatures.
Alaska, which has transportation challenges, allows ballots postmarked by Election Day to be counted up to 10 days after the election. However, Maryland, without the same challenges, also allows up to 10 days for ballots to arrive.
California, the District of Columbia, New York, and Oregon take ballots arriving seven days after the election.
New Jersey counts ballots arriving up to six days later. West Virginia will accept mail-in ballots arriving five days after. Nevada and Ohio count up to four days after. Kansas, Massachusetts, and Virginia will count ballots to arrive three days after Election Day.
Washington state law says that ballots received after the election with postmarks before Election Day are counted, but a receipt deadline is not specified, according to the National Conference of State Legislatures.
After the October ruling, a coalition of liberal groups filed a motion asking the full 5th Circuit to reconsider the panel’s decision, claiming it “dramatically upsets the balance between state and federal election administration struck by the Constitution’s elections clause by reading into the federal statutes an unspoken limitation on state power that has no grounding in text or history.”
An appeal is still pending.
