The opinion
Case: 24-60395 Document: 191-1 Page: 1 Date Filed: 10/25/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 25, 2024
No. 24-60395 Lyle W. Cayce
____________ Clerk
Republican National Committee; Mississippi Republican
Party; James Perry; Matthew Lamb,
Plaintiffs—Appellants,
versus
Justin Wetzel, in his official capacity as the clerk and registrar of the Circuit
Court of Harrison County; Toni Jo Diaz, in their official capacities as mem-
bers of the Harrison County Election Commission; Becky Payne, in their
official capacities as members of the Harrison County Election Commission; Bar-
bara Kimball, in their official capacities as members of the Harrison County
Election Commission; Christene Brice, in their official capacities as mem-
bers of the Harrison County Election Commission; Carolyn Handler, in
their official capacities as members of the Harrison County Election Commission;
Michael Watson, in his official capacity as the Secretary of State of Missis-
sippi,
Defendants—Appellees,
Vet Voice Foundation; Mississippi Alliance for Retired
Americans,
Intervenor Defendants—Appellees.
Libertarian Party of Mississippi,
Plaintiff—Appellant,
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versus
Justin Wetzel, in his official capacity as the clerk and registrar of the Circuit
Court of Harrison County; Toni Jo Diaz in their official capacities as mem-
bers of the Harrison County Election Commission; Becky Payne, in their
official capacities as members of the Harrison County Election Commission; Bar-
bara Kimball, in their official capacities as members of the Harrison County
Election Commission; Cristene Brice, in their official capacities as mem-
bers of the Harrison County Election Commission; Carolyn Handler, in
their official capacities as members of the Harrison
County Election Commission; Michael Watson, in his official
capacity as the Secretary of State of Mississippi,
Defendants—Appellees,
Vet Voice Foundation; Mississippi Alliance for Retired
Americans,
Intervenor Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC Nos. 1:24-CV-25, 1:24-CV-37
______________________________
Before Ho, Duncan, and Oldham, Circuit Judges.
Andrew S. Oldham, Circuit Judge:
Congress statutorily designated a singular “day for the election” of
members of Congress and the appointment of presidential electors. Text,
precedent, and historical practice confirm this “day for the election” is the
day by which ballots must be both cast by voters and received by state officials.
Because Mississippi’s statute allows ballot receipt up to five days after the
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federal election day, it is preempted by federal law. We reverse the district
court’s contrary judgment and remand for further proceedings.
I
A
Two constitutional provisions are relevant to this case. First, the Elec-
tors Clause provides: “The Congress may determine the Time of chusing the
Electors” for President. U.S. Const. art. II, § 1, cl. 4. Pursuant to the Elec-
tors Clause, the Second Congress mandated that States appoint presidential
electors within a 34-day period “preceding the first Wednesday in December
in every fourth year.” Act of Mar. 1, 1792, ch. 8, § 1, 1 Stat. 239. Some States
responded by adopting multi-day voting periods—but this caused election
fraud, delay, and other problems. See, e.g., Cong. Globe, 28th Cong. 2d Sess.
14–15, 29 (1844). So Congress intervened in 1845, fixing a “uniform time”
for appointing presidential electors on the Tuesday after the first Monday in
November. Act of Jan. 23, 1845, ch. 1, 5 Stat. 721 (to be codified at 3 U.S.C.
§ 1).
The second relevant constitutional provision is the Elections Clause.
It provides: “The Times, Places, and Manner of holding Elections for Sena-
tors and Representatives, shall be prescribed in each State by the Legislature
thereof; but the Congress may at any time by Law make or alter such Regu-
lations.” U.S. Const. art. I, § 4, cl. 1. The Elections Clause imposes a
“duty” upon States to hold elections for federal officers. Arizona v. Inter
Tribal Council of Ariz., Inc., 570 U.S. 1, 8 (2013). It also vests “power” in
Congress to “alter those [state] regulations or supplant them altogether.”
Ibid. In the early Republic, congressional elections occurred at varying times,
providing some States with an “undue advantage” of “indicating to the
country the first sentiment on great political questions.” Cong. Globe, 42d
Cong., 2d. Sess., 141, 116 (1871). And the establishment of a uniform day for
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presidential elections resulted in many States having two separate days for
federal elections. Id. at 141. As a result, Congress scheduled all House elec-
tions to occur on the presidential election day. Act of Feb. 2, 1872, ch. 11, § 3,
17 Stat. 28 (to be codified at 2 U.S.C. § 7).1
The upshot: These statutes “mandate[] holding all elections for Con-
gress and the Presidency on a single day throughout the Union.” Foster v.
Love, 522 U.S. 67, 70 (1997). As to the President, “The electors of President
and Vice President shall be appointed, in each State, on election day, in ac-
cordance with the laws of the State enacted prior to election day.” 3 U.S.C.
§ 1. And as to the House of Representatives, “The Tuesday next after the 1st
Monday in November, in every even numbered year, is established as the day
for the election.” 2 U.S.C. § 7. Throughout this opinion, we use the term
“Election Day” to refer to this singular day established by federal law as the
time for choosing members of Congress and presidential electors.
B
During the COVID-19 pandemic, Mississippi amended its election
laws to accept absentee ballots “postmarked on or before the date of the elec-
tion and received by the registrar no more than five (5) business days after
the election.” Act of July 8, 2020, ch. 472 § 1, 2020 Miss. Laws 1411; Miss.
Code § 23-15-637(1)(a). Now, after the pandemic, Mississippi has pre-
served that deadline and amended the statute to cover absentee ballots
transmitted by common carriers in addition to the United States Postal Ser-
vice. 2024 Miss. Laws H.B. 1406; Miss. Code § 23-15-637(1)(a).
_____________________
1
After the passage of the Seventeenth Amendment, Congress immediately
scheduled Senate elections to occur on the same day. Act of June 4, 1914, ch. 103, § 1, 38
Stat. 384.
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On January 26, 2024, plaintiffs Republican National Committee, Mis-
sissippi Republican Party, James Perry, and Matthew Lamb sued various
state officials in the Southern District of Mississippi to enjoin them from en-
forcing the State’s post-election ballot deadline. On February 5, 2024,
plaintiff Libertarian Party of Mississippi brought a functionally identical law-
suit. Both complaints alleged the federal Election Day statutes preempt
Mississippi’s law by establishing a uniform day for choosing members of
Congress and appointing presidential electors. 3 U.S.C. § 1; 2 U.S.C. §§ 1, 7.
They also brought claims under 42 U.S.C. § 1983 alleging violations of the
right to stand for public office and the right to vote under the First and Four-
teenth Amendments. The district court consolidated the cases.2
Plaintiffs and defendants jointly moved to schedule briefing on cross-
motions for summary judgment. The district court granted defendants’ mo-
tion for summary judgment on July 28. Plaintiffs timely appealed. We granted
Plaintiff-Appellants’ motion to expedite the appeal on August 9. Jurisdiction
is proper under 28 U.S.C. § 1291.3
II
Turning to the merits, we first (A) describe the preemption inquiry
that applies in election law cases. We then (B) hold Mississippi’s law is
preempted by the uniform federal Election Day. Finally (C), we explain how
historical practice confirms our holding.
_____________________
2
The district court also granted a motion to intervene as defendants by Defendant-
Appellees Vet Voice Foundation and Mississippi Alliance for Retired Americans.
3
Neither party disputes the plaintiffs’ standing before this court. That is
presumably because this case fits comfortably within our precedents. See OCA-Greater
Houston v. Texas, 867 F.3d 604, 610 (5th Cir. 2017); Vote.Org v. Callanen, 89 F.4th 459, 471
(5th Cir. 2023).
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We “review a district court’s grant of summary judgment de novo.”
Huskey v. Jones, 45 F. 4th 827, 830 (5th Cir. 2022). On cross-motions for
summary judgment, we review each motion independently, “with evidence
and inferences taken in the light most favorable to the nonmoving party.”
White Buffalo Ventures, LLC v. Univ. of Tex., 420 F.3d 366, 370 (5th Cir.
2005).
A
The constitution struck a delicate balance between state and federal
power to regulate elections. The Elections Clause creates a “default” pre-
sumption of state regulation, subject to Congress’s powerful check. Foster,
522 U.S. at 69. States can regulate many elements of federal elections, “but
only so far as Congress declines to preempt state legislative choices.” Ibid.
Congress retains the power under the Elections Clause to “override state
regulations by establishing uniform rules for federal elections, binding on the
States.” Ibid. (quotation omitted). When Congress exercises that power,
“any regulations it may make necessarily supersede inconsistent regulations
of the State” given its “paramount” constitutional authority in this area. Ex
Parte Siebold, 100 U.S. 371, 372 (1879). The question, then, is whether Mis-
sissippi’s law is “inconsistent with” federal statutes establishing “the day for
the election.” Inter Tribal, 570 U.S. at 15.4
We generally apply a presumption against preemption when Congress
“legislate[s] in areas traditionally regulated by the States.” See, e.g., Gregory
_____________________
4
Fifth Circuit precedent states the preemption inquiry differently, asking whether
a state statute “directly conflict[s] with federal election laws.” Voting Integrity Proj., Inc. v.
Bomer, 199 F.3d 773, 775 (5th Cir. 2000). Without expressly addressing the difference, a
prior panel of this court has used both interchangeably. Voting for America, Inc. v. Steen, 732
F.3d 382, 399–400 (5th Cir. 2013) (using “conflict” and “inconsistent” interchangeably
to analyze election-law preemption, citing both Inter Tribal and Bomer).
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v. Ashcroft, 501 U.S. 452, 460 (1991). That presumption does not apply under
the Elections Clause, however. “Because the power the Elections Clause
confers is none other than the power to pre-empt, the reasonable assumption
is that the statutory text accurately communicates the scope of Congress’s
pre-emptive intent.” Inter Tribal, 570 U.S. at 14. See also Gonzalez v. Arizona,
677 F.3d 383, 392 (9th Cir. 2012), aff’d sub nom. Inter Tribal, 570 U.S. 1 (2013)
(“In contrast to the Supremacy Clause . . . the Elections Clause affects only
an area in which the states have no inherent or reserved power: the regulation
of federal elections.”). Unlike other subjects of federal legislation, election
law “always falls within an area of concurrent state and federal power.” Inter
Tribal, 570 U.S. at 14 n.6 (emphasis in original). We therefore need not em-
ploy any presumption against preemption.
B
Our preemption analysis begins with the statutory text, as interpreted
by the Supreme Court. See id. at 9–10. Preemption thus turns on the meaning
of election within “the day for the election.” See 2 U.S.C. § 7; 3 U.S.C. §§ 1,
21. We must “interpret the words consistent with their ordinary meaning at
the time Congress enacted the statute.” Wis. Cent. Ltd. v. United States, 585
U.S. 274, 277 (2018) (quotation omitted).
The Supreme Court’s decision in Foster v. Love guides our under-
standing of the statutory text.5 That case involved Louisiana’s open primary
_____________________
5
While dictionary definitions often help our understanding of statutory text, they
do not shed light on Congress’s use of the word “election” in the nineteenth century.
Plaintiff-Appellants emphasize one that largely restates the federal election statutes: “[t]he
day of a public choice of officers.” Election, in Noah Webster, An American
Dictionary of the English Language (1830); see also GOP Blue Br. at 19. But
most other contemporary sources make no mention of deadlines or ballot receipt. See, e.g.,
Election, in 3 The Century Dictionary and Cyclopedia 1866 (1901) (“The act
or process of choosing a person or persons for office by vote . . . . [A]lso, the occasion or set
time and provision for making such choice.”); Election, in James Stormonth,
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system. 522 U.S. at 70. The State held congressional primary elections in
which all candidates appeared on one ballot, and all voters could cast their
votes. Ibid. If no candidate won a majority of votes, the general election pro-
ceeded as normal on the federal Election Day between the two candidates
with the most votes. Ibid. If a candidate won a majority of votes, however, the
election concluded then and there—before the federal Election Day. Ibid. The
Court held this system preempted by 2 U.S.C. §§ 1 and 7. Ibid. Although the
Foster Court declined to “par[e] the term ‘election’ in § 7 down to the defi-
nitional bone,” three definitional elements bear emphasis: (1) official action,
(2) finality, and (3) consummation. Ibid. (discussing 2 U.S.C. § 7). We dis-
cuss each in turn.
1
First, official action. Foster teaches that elections involve an element
of government action. “When the federal statutes speak of ‘the election’ of
a Senator or Representative, they plainly refer to the combined actions of vot-
ers and officials meant to make a final selection of an officeholder.” Id. at 71.
The State contends that “an election official’s only necessary involvement is
giving a voter the means to make a final selection—such as by offering a ballot
and a method to cast it.” MS Red Br. at 28.
The State’s problem is that it thinks a ballot can be “cast” before it is
received. What if a State changes its law to allow voters to mark their ballots
and place them in a drawer? Or what if a State allowed a voter to mark a ballot
and then post a picture on social media? The hypotheticals are obviously
_____________________
Etymological and Pronouncing Dictionary of the English
Language (W. Blackwood ed., 1881) (“[T]he choice or selection of a person or persons
to fill some office”); Election, Black’s Law Dictionary (1st ed. 1891) (“The
selection of one man from among several candidates to discharge certain duties in a state,
corporation, or society.”).
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absurd. But it should be equally obvious that a ballot is “cast” when the State
takes custody of it.
2
Second, finality. The Supreme Court has said “the word [election]
now has the same general significance as it did when the Constitution came
into existence—final choice of an officer by the duly qualified electors.” New-
berry v. United States, 256 U.S. 232, 250 (1921). An election involves more
than government action; it also involves the polity’s final choice of an office-
holder.
A voter’s selection of a candidate differs from the public’s election of
the candidate. Officials tally each voter’s selection and then declare a winner
of the election. Those are the not the same thing. And while an individual
voter might be able to make his or her selection in private, alone, it makes no
sense to say the electorate as a whole has made an election and finally chosen
the winner before all voters’ selections are received.
That is not to say all the ballots must be counted on Election Day.
Even if the ballots have not been counted, the result is fixed when all of the
ballots are received and the proverbial ballot box is closed. The selections are
done and final. By contrast, while election officials are still receiving ballots,
the election is ongoing: The result is not yet fixed, because live ballots are still
being received. Although a single voter has made his final selection upon
marking his ballot, the entire polity must do so for the overall election to con-
clude. So the election concludes when the final ballots are received and the
electorate, not the individual selector, has chosen.
Mississippi’s regulations further confirm this result. The absentee-
ballot statute authorizes the Secretary of State to issue rules and regulations
to effectuate the State’s absentee voting scheme. Miss. Code § 23-15-
637(3). And those regulations state that “an absentee ballot is the final vote
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of a voter when, during absentee ballot processing by the Resolution Board,
the ballot is marked accepted.” 01-17 Miss. Admin. Code R2.1 (emphasis
added). For absentee ballots submitted by mail, the ballot “shall be final, if
accepted by the Resolution Board” after receipt, processing, and deposit into
a secure ballot box. Id. at R.2.3(a). Thus, Mississippi’s own law belies its
mailbox-rule theory of finality. See Red Br. at 2 (“Voters make a conclusive
choice—a final selection that concludes and consummates the election—when
they mark and submit their ballots as required by law. The final selection is
then made.” (emphasis in original)).
Mississippi’s regulations also bring this case squarely within the hold-
ing of Maddox v. Board of State Canvassers, 149 P.2d 112 (Mont. 1944). In that
case, the Montana Supreme Court found the Electors Clause preempted a
state law that allowed receipt of ballots after Election Day. Id. at 116. Montana
state law defined casting a ballot as “depositing [] the ballot in the custody of
the election officials.” Id. at 115. By the State’s own terms, its statute thus
permitted voters to cast ballots five days after Election Day. That conflicted
with, and hence was preempted by, federal law. So too with Mississippi’s law
because it, like Montana’s, provides that a ballot is “final” when accepted by
election officials—five days after Election Day.
Finally, mail-in ballots are less final than Mississippi claims. The
postal service permits senders to recall mail, with the exception of overseas
UOCAVA ballots. See Domestic Mail Manual, §§ 507.5, 703.8; 39 C.F.R. §
111.1 and 39 C.F.R. § 211.2 (incorporating the Domestic Mail Manual by ref-
erence into the Postal Service Regulations). This indicates that at least
domestic ballots are not cast when mailed, and voters can change their votes
after Election Day. That further undermines the State’s claim that ballots are
“final” when mailed.
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3
Third, consummation. The Foster Court stated that “if an election
does take place, it may not be consummated prior to federal election day.” 522
U.S. at 72 n.4 (emphasis added). Louisiana’s law ran afoul of the uniform
federal Election Day because it permitted the State to conclude its election
early with no further action on Election Day.
Similarly, we have blessed a Texas early-voting law that permitted
“unrestricted” early voting up to 17 days before Election Day. See Voting In-
tegrity Proj., Inc. v. Bomer, 199 F.3d 773, 774 (5th Cir. 2000). We held that
scheme not preempted because election results would not be “decided or
consummated before federal election day.” Id. at 776 (quotation omitted).
The Bomer panel emphasized that Texas’s early voting scheme left polls open
on federal election day and that most voters cast their ballots on that day. Id.
at 775–76. In other words, so long as the State continued to receive ballots, the
election was ongoing and had not been consummated. Other circuits have
agreed. See Voting Integrity Proj., Inc. v. Keisling, 259 F.3d 1169, 1175 (9th Cir.
2001) (“But we have a Supreme Court decision which we must follow . . .
emphasizing that it found a violation of the statute only because there was no
act of officials or voters left to be done on federal election day.”); Millsaps v.
Thompson, 259 F.3d 535, 546 (6th Cir. 2001) (“Foster’s narrow holding sug-
gests that, so long as a State does not conclude an election prior to federal
election day, the State’s law will not ‘actually conflict’ with federal law.”).
Thus, the election is consummated when the last ballot is received and the
ballot box is closed.
Of course, it can take additional time to tabulate the election results.
Cf. Bush v. Gore, 531 U.S. 98, 116 (2000) (Rehnquist, C.J., concurring). It has
become a “routine[]” practice for election officials to count (or recount) bal-
lots after Election Day. Harris v. Fla. Elections Canvassing Comm’n, 122 F.
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Supp. 2d 1317, 1325 (N.D. Fla. 2000), aff’d sub nom. Harris v. Fla. Elections
Comm’n, 235 F.3d 578 (11th Cir. 2000); see also Millsaps, 259 F.3d at 546 n.5
(“[O]fficial action to confirm or verify the results of the election extends well
beyond federal election day . . .”). The election is nonetheless consummated
because officials know there are X ballots to count, and they know there are
X ballots to count because the proverbial ballot box is closed. In short, count-
ing ballots is one of the various post-election “administrative actions” that
can and do occur after Election Day. Millsaps, 259 F.3d at 546 n.5. Receipt of
the last ballot, by contrast, constitutes consummation of the election, and it
must occur on Election Day.
C
History confirms that “election” includes both ballot casting and bal-
lot receipt. Moore v. Harper teaches that this “historical practice” is
“particularly pertinent when it comes to the Elections and Electors
Clauses.” 143 S. Ct. 2065, 2086 (2023). For over a century after Congress
established a uniform federal Election Day, States understood those statutes
to mean what they say: that ballots must be received no later than the first
Tuesday after the first Monday in November. See Overseas Absentee Voting:
Hearing on S. 703 Before the S. Comm on Rules and Admin, 95th Cong. 33–34
(1977) (listing 48 States, Puerto Rico, the Virgin Islands, and the District of
Columbia as requiring ballot receipt on or before Election Day).
By necessity, early American voting occurred contemporaneously
with receipt of votes. Voting typically occurred viva voce, by showing hands,
or by using handwritten ballots that voters physically brought to the polls for
submission and counting. Burson v. Freeman, 504 U.S. 191, 200 (1992). Later,
political parties started to print and disseminate ballots, which voters would
take and submit. Ibid. Polling places became “akin to entering an open auc-
tion place,” rife with “bribery and intimidation.” Id. at 201–02. Adoption of
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the “Australian system” (including universal ballots and private polling
booths) in the early 1890s addressed these issues. Id. at 202–05. The Austral-
ian system bifurcated the voting process so that a voter could express his
preference non-contemporaneously with receipt and counting. But at the
time Congress established a uniform election day in 1845 and 1872, voting
and ballot receipt necessarily occurred at the same time.
Absentee voting began during the Civil War to secure the franchise of
soldiers in the field. See Josiah Henry Benton, Voting in the
Field: A Forgotten Chapter of the Civil War 5, 9 (1915). Be-
fore the war, citizens could vote only in person at meetings in their election
districts, and no jurisdiction permitted voting anywhere outside of the
voter’s district. Id. at 5. But when the war began, soldiers effectively lost their
votes when they left their districts, which engendered a sense of injustice:
“There seemed to be no reason why the man who was qualified to vote at
home should be disqualified merely because he was out of the State fighting
the battles of the Union or of the Confederacy.” Ibid. As a result, States in-
vented absentee voting procedures that severed the tie between physical
presence and voting.
States authorized absentee voting for soldiers using two methods.
First, voting in the field. Election officials brought ballot boxes to the battle-
field, where soldiers cast their ballots. Id. at 15. In such cases, the voter’s
“connection with his vote ended when he put it in the box, precisely as it
would have ended if he had put it into the box . . . at home.” Ibid. Unlike
Mississippi’s mailbox-rule analogy, field voting involved soldiers directly
placing their ballots into official custody with no carrier or intermediary. The
act of voting simultaneously involved receipt by election officials. The second
method, proxy voting, allowed soldiers to prepare ballots in the field and send
them to a proxy for deposit in the ballot box of the soldier’s home precinct.
Ibid. When proxy voting occurred, “the voter’s connection with his ballot did
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not end until it was cast into the box at the home precinct, and therefore []
the soldier really did vote, not in the field, but in his precinct at home.” Ibid.
Here, again, the voter voted when the vote was received by election officials.
Both methods underscore that official receipt marked the end of voting.
Early postwar iterations of absentee voting universally required re-
ceipt by Election Day. After the Civil War ended, most States eliminated field
voting. See id. at 314–15 (cataloging expiration of wartime voting measures).
By the time of World War I, however, many States had adopted a variety of
absentee voting laws. Some States limited absentee voting to soldiers and fur-
ther limited it to only wartime elections. P. Orman Ray, Military Absent-
Voting Laws, 12 Am. Pol. Sci. Rev. 461, 461–62 (1918). Nine States re-
quired voting on the day of the election, whether by proxy or by field voting.
Id. at 464. New York’s law allowed commanding officers to set a date and
account for military emergencies, but “in no case shall it be later than the day
of the general or special election.” Ibid. Three States required ballots to be
marked and submitted well before Election Day. Ibid. And West Virginia did
not specify a date, so long as ballots were returned by mail “in time to be
counted at home on election day.” Ibid. Thus, even during the height of war-
time exigency, a ballot could be counted only if received by Election Day.
Around this time, States that permitted civilian absentee voting im-
posed the same Election Day deadline for receiving ballots. Washington State
permitted voters to return ballots to be counted in a voter’s home county af-
ter Election Day, but those ballots were still collected by state officials by
Election Day. P. Orman Ray, Absent-Voting Laws, 1917, 12 Am. Pol. Sci.
Rev. 251, 253 (1918). Three States required voters to swear that they would
return ballots on or before Election Day. Id. at 255. Minnesota did not count
ballots received in the voter’s home district after Election Day. Id. at 256. Of
the States permitting absentee ballots, only Illinois addressed what to do with
ballots received too late: It provided for their destruction. Id. at 259. These
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early absentee voting laws universally foreclosed the possibility of accepting
and counting ballots received after Election Day because they specified that
ballots would be counted on Election Day.
Absentee and mail-in voting became more common over the course of
the twentieth century. By 1938, 42 States permitted some form of absentee
voting. Paul G. Steinbicker, Absentee Voting in the United States, 32 Am. Pol.
Sci. Rev. 898, 898–99 (1938). But it was almost impossible to count a ballot
received after Election Day. All but one of the 42 absentee voting States also
had time limits for ballot receipt, with the “usual requirement” of Election
Day. Id. at 905–06. By 1977, only two of the 48 States permitting absentee
voting counted ballots received after Election Day. Overseas Absentee Voting:
Hearing on S. 703 Before the S. Comm on Rules and Admin, 95th Cong. 33–34
(1977).
Even today, a substantial majority of States prohibit officials from
counting ballots received after Election Day. In January 2020, before the
COVID-19 pandemic, only 14 States and the District of Columbia accepted
ballots postmarked by Election Day—with the other 36 requiring receipt on
or before that date. Nat’l Conf. of State Legislatures, Table 6: The Evolution
of Absentee/Mail Voting Laws, 2020–22 (Oct. 26, 2023),
https://www.ncsl.org/elections-and-campaigns/the-evolution-of-absentee-
mail-voting-laws-2020-through-2022 [https://perma.cc/8ABZ-YFXC]. In
advance of the 2020 general election, seven States extended their ballot-re-
ceipt deadlines, including Mississippi. See ibid. Of those seven, two already
allowed post-election day receipt (California and North Carolina). Ibid.
While Mississippi and Massachusetts retained their 2020 ballot-receipt
dates, every other State that changed their receipt deadline subsequently re-
verted to earlier deadlines. Ibid. All told, as of November 2022, 18 States and
the District of Columbia permit post-Election Day receipt. See ibid.
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The considerable historical support for absentee voting says nothing
about whether States can extend the election past the uniform, singular Elec-
tion Day required by federal law. Instead, the practice of absentee voting that
arose during the Civil War demonstrates that the election concludes when all
ballots are received. A few “late-in-time outliers” say nothing about the orig-
inal public meaning of the Election-Day statutes. Cf. N.Y. State Rifle & Pistol
Ass’n, Inc. v. Bruen, 597 U.S. 1, 70 (2022); Dobbs v. Jackson Women’s Health
Org., 597 U.S. 215, 250–51 (2022).
III
Mississippi, Intervenors, and amici make several counterarguments.
Each is unavailing. We (A) discuss other federal statutes’ bearing on the
preemption inquiry. We then (B) address Mississippi’s analogy to the mail-
box rule. We then (C) discuss relief and the limited nature of today’s
decision.
A
Mississippi offers several federal statutes purporting to show Con-
gress “has reinforced that the federal election-day statutes do not require
ballot receipt by election day.” MS Red Br. at 2. But these statutes do no such
thing. The cited statutes are silent on the deadline for ballot receipt—and
congressional silence does not “reinforce[]” anything. Ibid.
First, the Uniform and Overseas Citizens Absentee Voting Act
(“UOCAVA”) provides procedures for voting by military members and ci-
vilians living abroad. See 52 U.S.C. § 20301 et seq. The Act requires federal
officials to submit ballots to state election officials “not later than the date by
which an absentee ballot must be received in order to be counted in the elec-
tion.” Id. § 20304(b)(1). It also creates a fail-safe federal absentee ballot for
voters who do not receive their state ballots on time. Id. § 20303(a)(1). But
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those, too, must be submitted in the same manner and on the same timeline
as absentee ballots in the voter’s State. Id. § 20303(b).
Next, the 1970 Amendments to the Voting Rights Act. These amend-
ments established a uniform absentee-ballot scheme for presidential
elections. See 52 U.S.C. § 10502. And like UOCAVA, the 1970 Amend-
ments say nothing about the date or timing of ballot receipt. Instead, voters
must return ballots “to the appropriate election official of [their] State not
later than the time of closing of the polls in such state on the day of such
election.” Id. § 10502(d).
Nothing in these statutes says that States are allowed to accept and
count ballots received after Election Day. Other statutes invoked by both par-
ties and amici suffer from the same deficiencies: All are silent on ballot receipt
and Election Day timing. At bottom, the very best Mississippi and its amici
can muster is that some federal election statutes are silent about—and hence
do not expressly prohibit—receiving and counting ballots after Election Day.
And if all we had was congressional silence, it would be difficult or impossible
for the plaintiffs to show preemption of state law.
But this is not a congressional-silence case. As demonstrated in Part
II, other federal statutes—in their text, tradition, and interpretation by the
Supreme Court—do require States to receive all ballots by Election Day. So
the plaintiff political parties have federal statutes that conflict with Missis-
sippi’s state law, and the defendants, intervenors, and their amici have only
congressional silence. Which is to say the latter have nothing at all. See
Sedima, SPRL v. Imrex Co., Inc., 473 U.S. 479, 495 n.13 (1985) (“[C]ongres-
sional silence, no matter how ‘clanging,’ cannot override the words of the
statute.”); Rapanos v. United States, 547 U.S. 715, 749 (2006) (plurality op.)
(noting the Court’s “oft-expressed skepticism toward reading the tea leaves
of congressional inaction”).
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Congress’s silence is particularly unhelpful to the State because other
statutes show that Congress knew how to authorize post-Election Day voting
when it wanted to do so. For example, the United States as amicus proffers
the Help America Vote Act of 2002 (“HAVA”). See Brief for United States
as Amicus Curiae 15–16; see also 52 U.S.C. § 20901 et seq. HAVA establishes
a procedure for provisional voting when a voter’s eligibility is in question. 52
U.S.C. § 21082. The voter casts a ballot and transmits it to appropriate elec-
tion officials, who then determine his eligibility to vote under state law. Id.
§ 21082(a)(1)–(3). Upon that verification, “the individual’s provisional bal-
lot shall be counted as a vote in that election in accordance with State law.”
Id. § 21082(a)(4). All jurisdictions that issue such ballots accept them after
Election Day. See Brief for United States as Amicus Curiae 16.
But the fact that Congress authorized a narrow exception for poten-
tially ineligible voters to cast provisional ballots after Election Day does not
impliedly repeal all of the other federal laws that impose a singular, uniform
Election Day for every other voter in America. As the Supreme Court has
explained:
When confronted with two Acts of Congress allegedly touch-
ing on the same topic, this Court is not at liberty to pick and
choose among congressional enactments and must instead
strive to give effect to both. A party seeking to suggest that two
statutes cannot be harmonized, and that one displaces the
other, bears the heavy burden of showing a clearly expressed
congressional intention that such a result should follow. The
intention must be clear and manifest. And in approaching a
claimed conflict, we come armed with the strong presumption
that repeals by implication are disfavored and that Congress
will specifically address preexisting law when it wishes to sus-
pend its normal operations in a later statute.
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Epic Sys. Corp. v. Lewis, 584 U.S. 497, 510 (2018) (quotation and citations
omitted). The United States as amicus cannot come close to showing that
HAVA displaces or impliedly repeals the longstanding general rule that the
federal Election Day is the singular day on which the ballot box closes. Ra-
ther, the best way to harmonize HAVA with the other statutes governing the
federal Election Day is that the former is a narrow exception that authorizes
States to receive a certain small number of provisional ballots after Election
Day from potentially unqualified voters. Not that it allows States to extend
the federal Election Day by one day, five days, or 100 days for all voters.
UOCAVA also permits post-Election Day balloting, but it does so
through its statutory text. UOCAVA’s remedial provisions authorize the
Attorney General to bring civil actions in federal court for declaratory or in-
junctive relief needed to enforce the Act. 52 U.S.C. § 20307(a). And the
Attorney General has done so. See Cases Raising Claims Under the Uniformed
and Overseas Citizen Absentee Voting Act, Dep’t of Just. (Mar. 24, 2022),
perma.cc/J8AS-X3K6. In many of these cases, federal courts have awarded
injunctive relief that includes extending ballot-receipt deadlines. See ibid.
That federal officials, pursuant to federal law, may take enforcement actions
in which federal courts grant ballot-receipt extensions says nothing about
Mississippi’s capacity to do so. And in any event, the fact that UOCAVA
authorizes such actions in its text is very different from Mississippi’s conten-
tion that congressional silence is enough to abrogate the uniform federal
Election Day.
So too with the other Election Day exceptions. For instance, 2 U.S.C.
§ 8 permits States to hold congressional elections on days other than the fed-
eral Election Day in the event of a vacancy, including those caused by
“death,” “resignation,” “incapacity,” or “failure to elect” a candidate on
Election Day (i.e., permitting runoff elections). Id. at § 8(a). As such, it “cre-
ates an exception to section 7’s absolute rule.” Busbee v. Smith, 549 F. Supp.
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494, 526 (D.D.C. 1982). Likewise, 3 U.S.C. § 21(1) permits States to
“modif[y] the period of voting” in presidential elections for “force majeure
events.” Where Congress wants to make exceptions to the federal Election
Day statutes, it has done so. All of this further proves Congress did not abro-
gate the uniform Election Day in other, non-excepted circumstances.
B
Mississippi next urges us to adopt a new mailbox rule: Once a voter
casts her ballot, her “election” of a candidate is complete. See MS Red Br. at
18, 23. Such rules are embraced in other areas of the law. For example, a con-
tract is formed when the offeree’s acceptance is “put out of [his] possession,
without regard to whether it ever reaches the offeror.” Restatement (Sec-
ond) of Contracts § 63(a) (Am. L. Inst. 1981). Federal tax law adopts such a
mailbox rule. See 26 U.S.C. § 7502(a). But voting is not a contract or tax re-
turn. So the fact that mailbox rules are authorized in other areas of law is at
best irrelevant. And at worst, it shows that Congress knows how to embrace
a mailbox rule when it wants to do so.
Mississippi further points to a recent Supreme Court opinion discuss-
ing election deadlines as support for its proposed mailbox rule. See Republican
Nat’l Comm. v. Democratic Nat’l Comm., 589 U.S. 423 (2020) (per curiam).
In response to COVID, a federal district court in Wisconsin issued a prelim-
inary injunction extending the State’s primary election, such that ballots
mailed and postmarked up to six days after the State’s deadline would be
counted. Id. at 423–24. The Court’s opinion states the injunction at issue
“would allow voters to mail their ballots after election day, which is extraor-
dinary relief and would fundamentally alter the nature of the election by
allowing voting for six additional days after the election.” Id. at 426 (emphasis
added). Mississippi claims that this statement proves the act of mailing
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ballots equates to voting, and it further reads the Supreme Court as embrac-
ing a mailbox rule for voting. MS Red Br. at 29.
But this is neither a logical nor necessary implication of the case. The
Court’s conclusion that mailing ballots after Election Day allows voting after
the election is equally consistent with the ballot-receipt requirement. If vot-
ers can mail their ballots after Election Day, those ballots are necessarily
received after Election Day, too. And in any event, the Supreme Court has
repeatedly cautioned that “the language of an opinion is not always to be
parsed as though we were dealing with language of a statute.” Reiter v. Sono-
tone Corp., 442 U.S. 330, 341 (1979); see also Nat’l Pork Producers Council v.
Ross, 598 U.S. 356, 373 (2023).
C
Today’s decision says nothing about remedies. We decline to grant
plaintiffs’ initial request for a permanent injunction, which they have not re-
newed before this court. See GOP Reply Br. at 2, MSLP Reply Br. at 22.
Instead, we remand to the district court for further proceedings to fashion
appropriate relief, giving due consideration to “the value of preserving the
status quo in a voting case on the eve of an election.” Tex. All. for Retired Ams.
v. Hughs, 976 F.3d 564, 567 (5th Cir. 2020); see also Purcell v. Gonzalez, 549
U.S. 1 (2006).6
_____________________
6
When reviewing the district court’s grant of summary judgment, we consider only
their entitlement to judgment as a matter of law. But “well-established principles of
equity” require a plaintiff to demonstrate, before the court issues a permanent injunction,
“(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as
monetary damages, are inadequate to compensate for that injury; (3) that, considering the
balance of hardships between the plaintiff and defendant, a remedy in equity is warranted;
and (4) that the public interest would not be disserved by a permanent injunction.” eBay
Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006) (citations omitted). These factors
require due consideration on remand.
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IV
In addition to their preemption claims, plaintiffs claimed violations of
the right to vote and the right to stand for office under the First and Four-
teenth Amendments and brought actions under 42 U.S.C. § 1983. The
district court concluded that Plaintiff-Appellants’ claims under § 1983
“stand or fall on whether the Mississippi absentee-ballots statute conflicts
with federal law.” Republican Nat’l Comm. v. Wetzel, No. 1:24-CV-00025-
LG-RPM, 2024 WL 3559623, at *11 (S.D. Miss. July 28, 2024). Because the
district court erroneously concluded that Mississippi’s statute is not
preempted by federal law, we vacate its grant of summary judgment on plain-
tiffs’ § 1983 claims and remand for reconsideration.
* * *
As Justice Kavanaugh recently emphasized: “To state the obvious, a
State cannot conduct an election without deadlines . . . A deadline is not un-
constitutional merely because of voters’ own failures to take timely steps to
ensure their franchise.” Democratic Nat’l Comm. v. Wis. State Legislature, 141
S. Ct. 28, 33 (2020) (Mem.) (Kavanaugh, J., concurring in denial of applica-
tion to vacate stay) (quotation omitted); see also Burdick v. Takushi, 504 U.S.
428, 438 (1992) (“Reasonable regulation of elections . . . does require [voters]
to act in a timely fashion if they wish to express their views in the voting
booth.” (emphasis in original)). Federal law requires voters to take timely
steps to vote by Election Day. And federal law does not permit the State of
Mississippi to extend the period for voting by one day, five days, or 100 days.
The State’s contrary law is preempted.
The judgment of the district court is REVERSED in part and
VACATED in part, and the case is REMANDED for further proceedings
consistent with this opinion.
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