Last week the Republican National Committee, along with the Republican Party of Mississippi and a few other plaintiffs, filed a federal lawsuit challenging Mississippi’s practice (in accordance with state law) of counting, in elections for members of Congress or presidential electors, mail-in ballots that are postmarked by “Election Day” but received within five business days thereafter. Since Mississippi’s approach to administration of federal (and state) elections is in this regard quite similar to that of many other states, were this lawsuit to be successful (especially at the federal appellate or Supreme Court levels) it would cause major disruption in, or at least major changes to, this fall’s congressional/presidential election. The chances of that happening, though, seem to us quite low, as the lawsuit’s theory of illegality seems quite weak.
Here is the relevant background: Articles I and II of the U.S. Constitution permit/direct states to provide for the times, places and manner for electing members of Congress and appointing presidential electors, but the Constitution also explicitly allows Congress to override state regulations of the timing of congressional elections and in a similar vein, with respect to presidential elector selection, to “determine the Time of chusing the Electors.” Pursuant to this power, Congress has enacted a law providing for a uniform, national day to elect members of Congress and to choose presidential electors. That day, which we colloquially call “Election Day” is (for congressional elections) the first Tuesday after the first Monday in November every two even-numbered years (2 U.S.C. §§ 7, 1) and (for presidential elections) the first Tuesday after the first Monday in November every four even-numbered years (3 U.S.C. § 1).
Mississippi law provides (presumably for both state and federal elections) that “[a]bsentee ballots . . . received by mail, must be postmarked on or before the date of the election and received by the [state] registrar no more than five (5) business days after the election.” Validly postmarked mail-in ballots received within five business days of Election Day are counted, but ballots received “after such time . . . shall not be counted.”
Plaintiffs allege that Mississippi’s practice violates federal law to the extent that Mississippi “hold[s] voting open beyond the federal Election Day.”
That, and nothing more, is the articulation of the claim in the Complaint.
In the space below, we explain why the claim, as asserted, strikes us as very implausible. Before we do that, though, we should mention that this case, like much election litigation in federal court, raises complex questions of justiciability. One question is whether some or all the plaintiffs assert an injury that is adequate to confer standing: the plaintiffs allege that improper counting of “late” voters dilutes the properly cast votes of others, and that because (as an empirical matter) late votes are more likely to tilt in favor of Democratic candidates than Republican candidates, Mississippi’s allegedly unlawful approach to vote counting hurts Republicans in particular. Another question is whether plaintiffs’ challenge is “ripe” given the fact that the next federal election is still 10 months away. Without analyzing these (or other) justiciability questions in any detail, let us say simply that (as one of us is arguing more elaborately in a forthcoming law review article), federal courts should—to “compensate” for the so-called “Purcell principle”(named for a 2006 Supreme Court case) foreclosing federal judicial review of election challenges close in time to the challenged elected—exercise flexibility in standing and ripeness requirements when suits are filed well in advance of a pending election.
As to the merits of the Mississippi lawsuit, we begin by noting that the plaintiffs’ claims are grounded in a conflict between state law and federal statutes. That is, plaintiffs do not allege that Mississippi is violating the U.S. Constitution except insofar as Mississippi is violating Supremacy Clause limitations by doing something Congress has validly prohibited. It becomes very important, then, to examine both the scope of the plaintiffs’ theory and also the best reading of the statutes Congress has passed that allegedly foreclose what Mississippi is doing.
First, we do not take plaintiffs to be asserting or even suggesting that every state must finish counting all federal ballots by the end (midnight) of Election Day. The counting of votes—both votes cast in person and by mail—in almost every state routinely extends into the morning hours of the day after Election Day or much later still. Asserting that this well-established practice is illegal—that is, that Congress has long intended to foreclose what almost all states have done for decades—would border on the frivolous.
One way to explain why counting ballots after Election Day is permissible is that the counting of ballots is different from the actual voting for/ selection of members of Congress or presidential electors. (The plaintiffs themselves acknowledge this distinction insofar as the Complaint challenges Mississippi’s allowance of late “voting” rather than late “counting.”) An Election Day deadline ordinarily does not mean that the identity of election winners must be known by 11:59 PM on Election Night, but instead only that the antecedent facts—who voted for whom—have to be locked into place by that time.
Such a distinction makes perfect sense of the Constitution’s and Congress’s allocation of power concerning federal-election regulation. Prior to the holding of an election, a state has broad federally approved power to tinker with its election administration regime without running afoul of Congress’s designation of an Election Day. But after Election Day, a state cannot reject its pre-election system simply because, say, the state now knows how close the election is and wants to use its newfound leverage as a decisive swing state to induce the candidates to bid for the state’s good will. Such gamesmanship would frustrate the very reason the Constitution permits Congress to require states to lock into a system of selection ex ante.
But the fact that voting is different from counting, and the fact that the plaintiffs themselves appear to concede that counting ballots (that are received by Election Day) after Election Day is permissible, requires us ask: what, precisely do plaintiffs understand the timing requirements of federal statutory law to be with respect to voting itself? Analytically, the plaintiffs could offer either of two answers (both of which would be consistent with the current practice of counting votes after midnight on Election Day), but neither works. First, the plaintiffs could say that the federal specification of Election Day means that states must count only those ballots that are cast (or received) precisely on Election Day itself. But this reading—that votes are valid only if they are made/delivered on Election Day proper—is untenable, since it would essentially foreclose all early-voting allowances that many states permit, and also make it hard for states to uniformly administer federal and state elections using the same procedures and ballots, something federal law promotes and values. More problematically still, such a reading would effectively foreclose all voting by mail, since no one could ever know for certain precisely how many days it would take for a mailed-in ballot to arrive. An effective elimination of mail-in voting in all federal elections makes no sense because, putting aside that all or nearly all states permit mail-in absentee voting for some voters, Congress itself has specifically provided for mail-in ballot options for, among others, servicepersons and Americans domiciled in other countries. Reading Congress’ specification of Election Day to be in tension with this mail-in option would violate canons of construction by which courts are to harmonize congressional enactments whenever reasonably possible.
That leaves us with another possible reading of federal law that plaintiffs might have in mind: that the specification of Election Day means that ballots can be counted only if they arrive on or before Election Day. This reading would permit mail-in and early voting and also explain why counting ballots (received by Election Day) after Election Day is permissible. But the problem with this reading of federal law is that Mississippi law can easily be characterized as being in compliance with it. All Mississippi has to say is that, just as ballots can arrive in precincts before Election Day and still be valid, they can arrive in federal post offices before Election Day and also be valid. In other words, Mississippi can, as a matter of state law, deem federal post offices to be precincts for the state for purposes of federal elections. States can certainly have drop boxes (either outside in-person polling places or in freestanding locations around the state) that remain open (with, for example, secure timer locks) for people to drop off ballots on or before 11:59 PM on Election Day (even if the ballots from these drop boxes are not collected until after midnight or days later), so why can’t Mississippi consider post offices to be such drop boxes? We don’t think there is a convincing answer to that question, which is one straightforward reason why we would be extremely surprised if this lawsuit ending up having any real legs.
