Petition for Writ of Certiorari — Michael Watson, Mississippi Secretary of State, Petitioner v. Republican National Committee, et al.
Supreme Court briefJun 6, 2025
Ask Donna
What actually matters in this document.
Text
No.
In the Supreme Court of the United States
MICHAEL WATSON, MISSISSIPPI SECRETARY OF STATE,
Petitioner,
v.
REPUBLICAN NATIONAL COMMITTEE, ET AL.,
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit
PETITION FOR A WRIT OF CERTIORARI
LYNN FITCH
Attorney General
SCOTT G. STEWART
Solicitor General
Counsel of Record
JUSTIN L. MATHENY
ANTHONY M. SHULTS
Deputy Solicitors General
MISSISSIPPI ATTORNEY
GENERAL’S OFFICE
P.O. Box 220
Jackson, MS 39205-0220
scott.stewart@ago.ms.gov
(601) 359-3680
Counsel for Petitioner
QUESTION PRESENTED
The federal election-day statutes—2 U.S.C. § 7,
2 U.S.C. § 1, and 3 U.S.C. § 1—set the Tuesday after
the first Monday in November in certain years as the
“election” day for federal offices. Like all other States,
Mississippi requires that ballots for federal offices be
cast—marked and submitted to election officials—by
that day. And like most other States, Mississippi
allows some of those timely cast ballots (mail-in
absentee ballots, in Mississippi’s case) to be counted
if they are received by election officials a short time
after election day (in Mississippi, within 5 business
days after election day). Miss. Code Ann. § 23-15637(1)(a). In the decision below, the Fifth Circuit held
that the federal election-day statutes require that
ballots be both cast by voters and received by election
officials by election day and thus preempt
Mississippi’s law.
The question presented is whether the federal
election-day statutes preempt a state law that allows
ballots that are cast by federal election day to be
received by election officials after that day.
ii
PARTIES TO THE PROCEEDING
Petitioner is Michael Watson, in his official
capacity as the Mississippi Secretary of State. He was
a defendant-appellee in the court of appeals.
Respondents are the Republican National
Committee, the Mississippi Republican Party, James
Perry, Matthew Lamb, and the Libertarian Party of
Mississippi. They were plaintiffs-appellants in the
court of appeals.
Vet Voice Foundation and Mississippi Alliance for
Retired Americans were intervenor defendantsappellees in the court of appeals.
The other defendants-appellees in the court of
appeals were: Justin Wetzel, in his official capacity as
the clerk and registrar of the Circuit Court of
Harrison County; and Toni Jo Diaz, Becky Payne,
Barbara Kimball, Christene Brice, and Carolyn
Handler, in their official capacities as members of the
Harrison County Election Commission.
RELATED PROCEEDINGS
United States District Court (S.D. Miss.):
Republican National Committee, et al. v.
Wetzel, et al., No. 24-cv-25 (July 29, 2024)
Libertarian Party of Mississippi v. Wetzel, et al.,
No. 24-cv-37 (July 29, 2024)
United States Court of Appeals (5th Cir.):
Republican National Committee, et al. v.
Wetzel, et al., No. 24-60395 (Oct. 25, 2024)
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ......................................... i
PARTIES TO THE PROCEEDING ........................... ii
RELATED PROCEEDINGS ...................................... ii
TABLE OF AUTHORITIES ..................................... iv
INTRODUCTION .......................................................1
OPINIONS BELOW ....................................................4
JURISDICTION ..........................................................4
CONSTITUTIONAL, STATUTORY, AND
REGULATORY PROVISIONS INVOLVED.........4
STATEMENT ..............................................................4
REASONS FOR GRANTING THE PETITION .......15
I. The Decision Below Is Wrong ...........................16
II. The Decision Below Warrants Review .............30
CONCLUSION ..........................................................33
APPENDIX A: Court of Appeals Opinion
(Oct. 25, 2024) ..............................1a
APPENDIX B: Court of Appeals Order Denying
Rehearing (Mar. 14, 2025).........27a
APPENDIX C: District Court Memorandum Opinion
and Order (July 28, 2024) .........59a
APPENDIX D: Constitutional, Statutory, and
Regulatory Provisions ...............86a
iv
TABLE OF AUTHORITIES
Page(s)
Cases
Abbott v. Perez,
585 U.S. 579 (2018) ..............................................30
Bost v. Illinois Board of Elections,
No. 24-568, — S. Ct. —,
2025 WL 1549779 (June 2, 2025) ........................32
Democratic National Committee v.
Wisconsin State Legislature,
141 S. Ct. 28 (2020)...................3, 19, 21, 25-26, 31
District of Columbia v. Heller,
554 U.S. 570 (2008) ..............................................21
Foster v. Love,
522 U.S. 67 (1997) ....................2, 4, 5, 8-10, 15, 17,
18, 20-22, 29, 30, 32
Newberry v. United States,
256 U.S. 232 (1921) ................................ 2, 8, 16, 17
Republican National Committee v.
Democratic National Committee,
589 U.S. 423 (2020)
(per curiam).............................. 2, 12, 19, 20, 24, 25
United States v. Classic,
313 U.S. 299 (1941) ..........................................4, 17
United States v. Oakland Cannabis
Buyers’ Cooperative,
532 U.S. 483 (2001) ..............................................28
Voting Integrity Project, Inc. v. Keisling,
259 F.3d 1169 (9th Cir. 2001)................................5
v
Constitutional Provisions
U.S. Const. art. I, § 4, cl. 1 .............................. 5, 29, 30
U.S. Const. art. II, § 1, cl. 1 ........................................5
U.S. Const. art. II, § 1, cl. 2 ..................................5, 30
U.S. Const. art. II, § 1, cl. 4 ..................................5, 29
U.S. Const. art. III ............................................8, 9, 32
U.S. Const. amend. I ...................................................7
U.S. Const. amend. XII ...............................................5
U.S. Const. amend. XIV ..............................................7
U.S. Const. amend. XVII ............................................6
U.S. Const. amend. XX .............................................29
Statutes
2 U.S.C. § 1 ............................... i, 1, 6, 7, 10, 16-18, 29
2 U.S.C. § 7 ............................... i, 1, 5, 7, 10, 16-18, 29
2 U.S.C. § 8 ..........................................................13, 28
3 U.S.C. § 1 ...........................................i, 1, 6, 7, 16, 28
3 U.S.C. § 5 ................................................................29
3 U.S.C. § 7 ................................................................29
3 U.S.C. § 21 .................................................... 6, 13, 28
28 U.S.C. § 1254 ..........................................................4
28 U.S.C. § 1331 ..........................................................7
52 U.S.C. § 20301 et seq. ...........................................13
52 U.S.C. § 20307 ................................................13, 27
52 U.S.C. § 20901 et seq. ...........................................13
vi
52 U.S.C. § 21082 ................................................13, 27
Act of Feb. 2, 1872, ch. 11, 17 Stat. 28 .......................5
Act of Jan. 23, 1845, ch. 1, 5 Stat. 721 .......................6
Act of June 4, 1914, ch. 103, 38 Stat. 384 ..................6
Miss. Code Ann. § 23-15-541 et seq. ...........................6
Miss. Code Ann. § 23-15-581 ................................7, 20
Miss. Code Ann. § 23-15-621 et seq. ...........................6
Miss. Code Ann. § 23-15-637 ...............i, 1, 6, 7, 20, 23
Miss. Code Ann. § 23-15-639 ................................7, 30
Miss. Code Ann. § 23-15-781 ....................................30
Miss. Code Ann. § 23-15-1033 ..................................30
Miss. Code Ann. § 23-15-1041 ..................................30
Regulations
1 Miss. Admin. Code pt. 17, R. 2.1 .....................11, 23
1 Miss. Admin. Code pt. 17, R. 2.3 ............... 11, 23, 24
Other Authorities
Funk and Wagnalls,
Desk Standard Dictionary (1919) .......................17
Charles Kettleborough,
Absent Voting,
11 Am. Pol. Sci. Rev. 320 (1917)..........................26
Mississippi Legislature,
2024 Regular Session,
House Bill 1406 ....................................................30
vii
National Conference of State Legislatures,
Table 11: Receipt and Postmark Deadlines
for Absentee/Mail Ballots
(updated May 12, 2025) .......................................31
Paul G. Steinbicker,
Absentee Voting in the United States,
32 Am. Pol. Sci. Rev. 898 (1938) ..........................26
Noah Webster,
An American Dictionary of the
English Language (1841).....................................16
Noah Webster,
An American Dictionary of the
English Language (1869).................................2, 17
Joseph E. Worcester,
Dictionary of the English Language (1860) ........17
INTRODUCTION
The Fifth Circuit in this case held that the federal
laws setting the federal “election” day preempt a
Mississippi law allowing absentee ballots cast by
election day to be received shortly after that day. That
ruling defies statutory text, conflicts with this Court’s
precedent, and—if left to stand—will have
destabilizing nationwide ramifications. As five judges
explained in dissenting from the denial of rehearing
en banc, the decision is thus deeply wrong and raises
an issue of exceptional importance. This Court should
review that decision now and reject it.
Federal law sets the Tuesday after the first
Monday in November in certain years as the
“election” day for federal offices. 2 U.S.C. § 7; 2 U.S.C.
§ 1; 3 U.S.C. § 1. Like all other States, Mississippi
requires that ballots for federal offices be cast—
marked and submitted to election officials—by that
day. And like most other States, Mississippi allows
some of those timely cast ballots (mail-in absentee
ballots, in Mississippi) to be counted if they are
received by election officials soon after election day (in
Mississippi, within 5 business days after election
day). Miss. Code Ann. § 23-15-637(1)(a). The Fifth
Circuit held here that federal law requires that
ballots be received by election day and so preempts
Mississippi’s law.
The Fifth Circuit’s decision is wrong. As a matter
of plain meaning, an “election” is the conclusive choice
of an officer. Voters make that choice by casting—
marking and submitting—their ballots by election
day. The election has then occurred, even if election
officials do not receive all ballots by that day. Under
2
Mississippi law, voters cast their ballots by election
day. So federal law does not preempt Mississippi law.
That plain-text view has the support of this
Court’s cases defining “election” from ratification to
the modern day, dictionary definitions across the
centuries, and this Court’s holdings. Those
authorities emphasize the voters’ choice of an officer—
which is made when ballots are cast. E.g., Foster v.
Love, 522 U.S. 67, 71 (1997) (an election is “‘[t]he act
of choosing a person to fill an office’”) (quoting Noah
Webster, An American Dictionary of the English
Language 433 (1869)); Newberry v. United States, 256
U.S. 232, 250 (1921) (since ratification, election has
meant “final choice of an officer by the duly qualified
electors”). And this Court has held that election day
is the day to “conclude[ ]” the election—through a
“final selection” of officers. Foster, 522 U.S. at 71, 72.
That occurs when voters have marked and submitted
their ballots: ballots are then cast and the final
selection is concluded—even if that selection cannot
be effectuated until ballots are received. None of these
authorities even mentions ballot receipt in defining
an “election.” That is because ballot “cast[ing]” is
“fundamental[ ]” to an election, but ballot “recei[pt]”
is not. Republican National Committee v. Democratic
National Committee, 589 U.S. 423, 424, 426 (2020)
(per curiam).
Ballot receipt is, of course, critical to effectuating
the voters’ choice. But that is also true of counting
votes. Yet—as the Fifth Circuit and respondents
agree—counting votes is not part of the election. That
is why counting votes lawfully can and does occur
after election day. So too with ballot receipt: it is
vital—but it is not part of the election itself. States
may thus do what Mississippi has done: make a
3
“policy choice” to “require only that absentee ballots
be mailed by election day.” Democratic National
Committee v. Wisconsin State Legislature, 141 S. Ct.
28, 34 (2020) (Kavanaugh, J., concurring in denial of
application to vacate stay).
The Fifth Circuit’s decision warrants this Court’s
review. The court struck down a state law regulating
elections—a matter the Constitution allows States to
address—based on stark errors of law. That decision
will have sweeping ramifications. The rule the Fifth
Circuit adopted would require scrapping election laws
in most States. About 30 States and the District of
Columbia accept some ballots that are mailed by
election day but received after that day. The decision
below thus invites nationwide litigation against laws
in most States—risking chaos in the next federal
elections, particularly given the tendency of electionlaw claims to spur last-minute lawsuits. Less than 18
months remain before the next federal election—and
state electoral processes start much sooner. States
need to know whether federal law permits postelection-day ballot-receipt laws—and thus whether
they must change their laws to comply with federal
law or whether they may change their laws on policy
grounds. The stakes are high: ballots cast by—but
received after—election day can swing close races and
change the course of the country. And this case is an
excellent vehicle. The decision below is countered by
a comprehensive dissent from the denial of rehearing
en banc, so this Court has the benefit of thorough
lower-court treatment of the purely legal question
presented. Waiting to resolve that question will invite
chaos, confusion, and unfairness. This Court should
grant review now and reverse.
4
OPINIONS BELOW
The court of appeals’ opinion (App.1a-26a) is
reported at 120 F.4th 200. The court of appeals’ order
denying rehearing en banc and the opinions
accompanying that denial (App.27a-58a) are reported
at 132 F.4th 775. The district court’s opinion
(App.59a-85a) is reported at 742 F. Supp. 3d 587.
JURISDICTION
The court of appeals’ judgment was entered on
October 25, 2024. The court of appeals denied
rehearing en banc on March 14, 2025. This Court’s
jurisdiction is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL, STATUTORY, AND
REGULATORY PROVISIONS INVOLVED
Pertinent constitutional, statutory, and regulatory
provisions are reproduced in the appendix to this
petition. App.86a-91a.
STATEMENT
1. a. As a “default” rule, the Constitution “invests
the States” with “responsibility” over most of “the
mechanics” of elections to federal offices. Foster v.
Love, 522 U.S. 67, 69 (1997). States thus enjoy “a wide
discretion” in establishing a “system” for federal
elections. United States v. Classic, 313 U.S. 299, 311
(1941). At the same time, the Constitution “grants” to
Congress authority over some aspects of federal
elections and “the power to override” certain state
election regulations. Foster, 522 U.S. at 69.
This framework is set out chiefly in Articles I and
II. Article I addresses congressional elections. The
Elections Clause provides: “The Times, Places and
5
Manner of holding Elections for Senators 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 Regulations, except
as to the Places of chusing Senators.” U.S. Const. art.
I, § 4, cl. 1. Article II addresses presidential elections.
The Electors Clause provides: “Each State shall
appoint, in such Manner as the Legislature thereof
may direct, a Number of Electors” to vote for
President and Vice President. Id. art. II, § 1, cl. 2; see
id. art. II, § 1, cl. 1; id. amend. XII. But “[t]he
Congress may determine the Time of chusing the
Electors, and the Day on which they shall give their
Votes; which Day shall be the same throughout the
United States.” Id. art. II, § 1, cl. 4.
For decades after the Founding, “Congress left the
actual conduct of federal elections to the diversity of
state arrangements.” Voting Integrity Project, Inc. v.
Keisling, 259 F.3d 1169, 1171 (9th Cir. 2001). But
Congress eventually set some “uniform” national
“rules” for federal elections. Foster, 522 U.S. at 69.
This case involves one of those rules: the rule
setting the election day for federal offices. In three
federal statutes, Congress has established federal
election day as the Tuesday after the first Monday in
November in certain years. The statute on
Representatives, adopted in its original form in 1872,
says: “The Tuesday next after the 1st Monday in
November, in every even numbered year, is
established as the day for the election, in each of the
States and Territories of the United States, of
Representatives and Delegates to the Congress
commencing on the 3d day of January next
thereafter.” 2 U.S.C. § 7; see Act of Feb. 2, 1872, ch.
11, § 3, 17 Stat. 28. The statute on Senators, first
6
enacted in 1914 (after the Seventeenth Amendment
called for the popular election of Senators), adopts the
same rule. Act of June 4, 1914, ch. 103, § 1, 38 Stat.
384. It now says: “At the regular election held in any
State next preceding the expiration of the term for
which any Senator was elected to represent such
State in Congress, at which election a Representative
to Congress is regularly by law to be chosen, a United
States Senator from said State shall be elected by the
people thereof for the term commencing on the 3d day
of January next thereafter.” 2 U.S.C. § 1. And the
same rule applies for appointing electors for President
and Vice President. The governing statute, adopted in
its original form in 1845, now says: “The electors of
President and Vice President shall be appointed, in
each State, on election day, in accordance with the
laws of the State enacted prior to election day.” 3
U.S.C. § 1; see id. § 21(1) (“election day” in 3 U.S.C.
§ 1 “means the Tuesday next after the first Monday in
November, in every fourth year succeeding every
election of a President and Vice President held in each
State,” except with certain “force majeure events”);
Act of Jan. 23, 1845, ch. 1, 5 Stat. 721.
b. Mississippi law allows qualified residents to
vote in federal elections in person on election day or
(in limited circumstances) absentee. Miss. Code Ann.
§§ 23-15-541 et seq., 23-15-621 et seq. Mississippians
wishing to vote absentee may do so “either by mail or
in person with a regular paper ballot.” Id. § 23-15637(3). For in-person absentee ballots to be counted,
they must be “cast ... and deposited into a sealed
ballot box by the voter, not later than 12:00 noon on
the Saturday immediately preceding elections held on
Tuesday.” Id. § 23-15-637(1)(b). For mail-in absentee
ballots (including ballots sent by “common carrier”) to
7
be counted, they “must be postmarked on or before the
date of the election and received by the registrar no
more than five (5) business days after the election.”
Id. § 23-15-637(1)(a). “[A]ny” ballots “received after
such time ... shall not be counted.” Ibid. A mail-in
absentee ballot is thus “cast” when it is mailed,
“timely cast” when it is postmarked on or before
election day, and “timely ... received” when received
within 5 business days after election day. Id. § 23-15637(1)(a), (2). Absentee ballots are counted only after
“the polls close” on election day. Id. § 23-15-639(1)(c);
see id. § 23-15-581.
2. In 2024 the Republican National Committee,
the Mississippi Republican Party, James Perry (a
Mississippi voter affiliated with Republican
committees), and Matthew Lamb (a Mississippi voter
and county election commissioner) filed suit under 28
U.S.C. § 1331 against the Mississippi Secretary of
State (petitioner here) and several county officials
charged with election administration. ROA.23-36
(complaint). The Libertarian Party of Mississippi filed
a separate suit against the same defendants. App.5a.
Plaintiffs are respondents here.
Respondents contend that the federal election-day
statutes (2 U.S.C. § 7, 2 U.S.C. § 1, and 3 U.S.C. § 1)
require ballots to be received by election officials—not
just cast—by election day. They claim that
Mississippi’s law allowing mail-in absentee ballots
cast by election day to be received within 5 business
days after that day (Miss. Code Ann. § 23-15637(1)(a)) is therefore preempted by the federal
election-day statutes, violates the right to stand for
office protected by the First and Fourteenth
Amendments, and violates the right to vote protected
by the Fourteenth Amendment. App.5a.
8
The district court consolidated the cases, allowed
Vet Voice Foundation and Mississippi Alliance for
Retired Americans to intervene as defendants, and
agreed to resolve the cases on cross-motions for
summary judgment. App.5a-6a & n.2.
The district court granted summary judgment to
the defendants. App.59a-85a. It ruled that
respondents have Article III standing (App.62-72a)
but that their claims fail on the merits (App.72a-83a).
On the merits, the court first rejected respondents’
preemption claim, holding that Mississippi’s law
“does not conflict with” the federal election-day
statutes. App.84a; see App.72a-82a. The court focused
on “the meaning of the word ‘election’” in those
statutes. App.77a; see App.77a-79a. When Congress
enacted those statutes, the court explained, the
“ordinary meaning” of election was “‘final choice of an
officer by the duly qualified electors’” or “‘the
combined actions of voters and officials meant to
make a final selection of an officeholder.’” App.77a,
78a (quoting Newberry v. United States, 256 U.S. 232,
250 (1921), then Foster, 522 U.S. at 71; district court’s
emphases). Mississippi’s law, the court held, accords
with that meaning by requiring that the “election” be
held on federal election day. “[U]nder Mississippi’s
law,” the court explained, “no ‘final selection’ is made
after the federal election day.” App.79a. “All that
occurs after election day is the delivery and counting
of ballots cast on or before election day.” Ibid. The
court added that its conclusion respects the federal
election-day statutes’ aims, because requiring ballot
casting by election day (but ballot receipt after that)
does not “burden[ ] citizens with multiple election
days” or “risk[ ] undue influence upon voters in one
state from the announced tallies in states voting
9
earlier.” App.82a; see Foster, 522 U.S. at 73-74
(discussing Congress’s aims).
The court also rejected respondents’ right-to-vote
and right-to-stand-for-office claims. App.83a. The
court said that those claims “stand or fall on whether
the Mississippi absentee-ballots statute conflicts with
federal law, in which case [respondents] say their
rights would be violated.” Ibid. Because there is “no
such conflict,” there are “no such violations.” Ibid.
3. The court of appeals reversed in part, vacated in
part, and remanded. App.1a-26a.
On standing, the court held that respondents
possess Article III standing and that “this case fits
comfortably within” precedent. App.6a n.3.
On the merits, the court held that “Mississippi’s
law is preempted.” App.6a; see App.2a-3a, 6a-24a. The
court ruled that, under the federal election-day
statutes, federal “election” day “is the day by which
ballots must be both cast by voters and received by
state officials” and that Mississippi law conflicts with
those statutes because it allows ballots to be received
after election day. App.3a. That holding, the court
said, flows from “[t]ext, precedent, and historical
practice.” App.2a-3a.
On text: The court said that preemption here
“turns on the meaning of election” in the federal
election-day statutes. App.8a (emphasis added). The
court acknowledged that “dictionary definitions often
help” in “understanding ... statutory text,” but
declared that those definitions “do not shed light on
Congress’s use of the word ‘election’ in the nineteenth
century.” App.8a n.5. The court said that one
dictionary “largely restates the federal election
10
statutes” and “most other contemporary sources make
no mention of deadlines or ballot receipt.” Ibid.
On precedent: The court focused (App.8a-13a) on
this Court’s decision in Foster v. Love, which held that
2 U.S.C. §§ 1 and 7 preempted a Louisiana law
allowing Senators and Representatives to be elected
in October, “without any action to be taken on federal
election day” in November. 522 U.S. at 68-69, 74.
Foster ruled that “[w]hen the federal statutes speak
of ‘the election’ of a Senator or Representative, they
plainly refer to the combined actions of voters and
officials meant to make a final selection of an
officeholder.” Id. at 71. Because the election must
occur on federal election day, this Court held, a
congressional election “may not be consummated
prior to federal election day.” Id. at 72 n.4.
From Foster the court drew three “elements” to an
“election” that the federal election-day statutes
require by election day: “official action”; “finality”; and
“consummation.” App.9a. The court faulted
Mississippi’s law on each element. App.9a-13a.
First, the court ruled that, by requiring ballot
casting but not ballot receipt by election officials by
election day, Mississippi law lacks the “official action”
that must occur on election day. App.9a-10a. Citing
“hypotheticals” that it called “obviously absurd”—
what if a State allowed voters to mark their ballots
and then “place them in a drawer” or “post a picture
on social media”?—the court declared it “equally
obvious” that “a ballot is ‘cast’ when the State takes
custody of it.” App.10a.
Second, the court ruled that Mississippi law does
not provide the “finality” that must occur on election
day. App.10a-12a. The court declared that an election
11
involves “the polity’s final choice of an officeholder”—
not just individual voters’ “selection[s]”—and the
polity has not “made an election and finally chosen
the winner before all voters’ selections are received.”
App.10a (emphases omitted). The court contrasted
ballot receipt with ballot counting—which it agreed
need not occur on election day. Ibid. Even if ballots
have not been counted on election day, the court said,
“the result is fixed when all of the ballots are received
and the proverbial ballot box is closed”: “[t]he
selections are done and final.” Ibid. But “while
election officials are still receiving ballots, the election
is ongoing”: “[t]he result is not yet fixed, because live
ballots are still being received.” Ibid. The court also
cited state agency regulations saying that mail-in
absentee ballots are “final” when “accepted,”
processed, and deposited in a ballot box. 1 Miss.
Admin. Code pt. 17, R. 2.1, 2.3(a). The court took those
regulations to mean that absentee ballots are not final
when mailed. App.11a. The court closed by declaring
that “mail-in ballots are less final than Mississippi
claims” because “[t]he postal service permits senders
to recall mail.” App.12a.
Third, the court ruled that under Mississippi law
an election is not “consummated” on election day.
App.12a-13a. “[T]he election is consummated,” the
court said, only “when the last ballot is received and
the ballot box is closed.” App.13a. “[S]o long as the
State continue[s] to receive ballots, the election [is]
ongoing and ha[s] not been consummated.” App.12a13a. By contrast, when officials only count ballots
after election day, the election is “consummated”
because “officials know there are X ballots to count”
since “the proverbial ballot box is closed.” App.13a.
12
The court saw no conflict (App.23a-24a) between
its holding and Republican National Committee v.
Democratic National Committee, 589 U.S. 423 (2020)
(per curiam), which stayed an injunction that allowed
ballots in Wisconsin to be mailed after primary
election day because “allow[ing] voters to mail their
ballots after election day ... would fundamentally
alter the nature of the election by allowing voting ...
after the election.” Id. at 426. That conclusion, the
court said, “is equally consistent with the ballotreceipt requirement” as it is with the view that an
election requires only ballot casting: “If voters can
mail their ballots after Election Day, those ballots are
necessarily received after Election Day, too.” App.24a.
The court added that “the language of an opinion is
not always to be parsed as though we were dealing
with language of a statute.” Ibid.
On history: The court believed that “[h]istory
confirms that ‘election’ includes both ballot casting
and ballot receipt.” App.14a; see App.14a-18a. “For
over a century after Congress established a uniform
federal Election Day,” the court said, “States
understood those statutes to mean ... that ballots
must be received no later than the first Tuesday after
the first Monday in November.” App.14a. According to
the court, early American voting occurred (“[b]y
necessity”) “contemporaneously with receipt of votes,”
App.14a, absentee voting (from soldier absentee
voting in the Civil War to broader civilian absentee
voting deep into the 20th century) long largely
required ballot receipt by election day, App.15a-17a,
and “[e]ven today” most States “prohibit officials from
counting ballots received after” election day, App.17a.
The court said that other federal laws are either
“silent on the deadline for ballot receipt” (and so do
13
“nothing at all” that would allow post-election-day
ballot receipt) or “show that Congress knew how to
authorize post-Election Day voting when it wanted to
do so.” App.19a, 20a (emphasis omitted); see App.19a23a. On the latter point, the court first cited the Help
America Vote Act of 2002 (HAVA), 52 U.S.C. § 20901
et seq., which sets a voting procedure for when a
voter’s eligibility is in question: such a voter submits
a provisional ballot that is counted if the voter is later
determined eligible. Id. § 21082(a). The court said:
“All jurisdictions that issue such ballots accept them
after Election Day.” App.21a (citing U.S. Amicus Br.
16 (CA5 Dkt. 148)). The court then cited the
Uniformed and Overseas Citizens Absentee Voting
Act (UOCAVA), 52 U.S.C. § 20301 et seq., which
regulates military and overseas voting. The court said
that UOCAVA “permits post-Election Day balloting,
but it does so through its statutory text,” which
“authorize[s] the Attorney General to bring civil
actions in federal court for declaratory or injunctive
relief needed to enforce the Act.” App.22a (citing 52
U.S.C. § 20307(a)). In “many” cases, the court said,
federal courts have issued injunctions “extending
ballot-receipt deadlines.” Ibid. The court last cited 2
U.S.C. § 8(a) (which lets States hold congressional
elections on days other than federal election day for
vacancies and runoffs) and 3 U.S.C. § 21(1) (which
lets States “modif[y]” the “period of voting” in
presidential elections for certain “force majeure
events”). App.22a-23a. These statutes, the court said,
again show that, “[w]here Congress wants to make
exceptions to the federal Election Day statutes, it has
done so.” App.23a.
Based on its view of the federal election-day
statutes, the court of appeals reversed the district
14
court’s judgment on respondents’ preemption claims
and remanded “for further proceedings to fashion
appropriate relief” on those claims. App.24a, 26a. The
court vacated the district court’s judgment on
respondents’ other claims (since that judgment rested
on the district court’s preemption ruling) and
“remand[ed] for reconsideration” of those claims.
App.25a. The court called its decision “limited” in
“nature.” App.18a.
4. The court of appeals denied rehearing en banc
by a 10-5 vote. App.29a. Four opinions accompanied
that denial. App.30a-58a.
Judge Graves dissented in an opinion joined by
four other judges. App.35a-56a. He maintained that
“federal law does not mandate that ballots be received
by state officials” by election day and that this case
“presents a question of exceptional importance.”
App.35a. The panel decision, Judge Graves said,
“runs counter to all the traditional tools of statutory
interpretation”:
“plain
meaning,
dictionary
definitions, common parlance, historical practice,
congressional intent, and congressional history.”
App.56a. He maintained: that dictionary definitions
show that an “election” requires that voters “ma[ke]
choices for public officers—nothing more,” App.38a;
see App.38a-39a; that “common parlance” confirms
that an election requires only ballot casting, not ballot
receipt, App.41a-42a; that “[h]istorical practice”
supports that view, because in the Civil War (which
occurred around when the main election-day statutes
were enacted) “many states accommodated wartime
voting by counting timely-cast ballots that were
received after Election Day,” App.47a; see App.47a51a; that other federal statutes confirm that the
federal election-day statutes do not set a ballot-
15
receipt deadline, App.52a-54a; that the panel’s
analysis under Foster is flawed, App.39a-47a; and
that “statutory and practical” “[l]imiting principles”
“prevent” absurd outcomes (such as a ballot-receipt
deadline 100 days after election day), App.54a. He
observed that the panel’s holding deems preempted
“ballot receipt laws in at least twenty-eight states and
the District of Columbia.” App.56a.
In a concurrence joined by all members of the
three-judge panel (plus Judge Smith), Judge Oldham
said that the panel “did not hold that the States’
common practice of counting timely-cast ballots
received after Election Day was preempted,” because
the panel “recognized” that States “obviously can
accept ballots after Election Day under circumstances
authorized by federal law” (as in HAVA and
UOCAVA). App.33a (cleaned up). And without “time
limits” on “ballot acceptance,” he added, States could
extend congressional ballot-receipt deadlines “2
months, or even 2 years, after Election Day” and could
“engage in gamesmanship, experiment with
deadlines, and renew the very ills Congress sought to
eliminate: fraud, uncertainty, and delay.” App.34a.
Judge Higginson wrote a dissent commending two
non-party attorneys’ written “critique[s]” of the panel
decision. App.57a-58a. Judge Ho responded with a
concurrence suggesting that such critiques “may just
reflect the institutional bias at many of the nation’s
largest law firms.” App.30a; see App.31a-33a.
REASONS FOR GRANTING THE PETITION
This Court should grant certiorari and hold that
the federal election-day statutes do not preempt state
laws, like Mississippi’s, that allow ballots that are
cast by federal election day to be received a short time
16
after that day. The court of appeals’ contrary holding
defies the federal election-day statutes’ plain text and
this Court’s precedent. Unless this Court intervenes,
that holding will have profound and destabilizing
nationwide ramifications. That holding would scrap
election laws in most States and will invite breakneck
litigation and threaten electoral chaos. This Court can
avoid all that by granting review now and reversing.
I. The Decision Below Is Wrong.
Under federal law, election day is the day for
voters to conclusively choose federal officers. Voters
make that conclusive choice by casting—marking and
submitting—their ballots by election day. Under
Mississippi law, mail-in absentee voters cast their
ballots by election day. So federal law does not
preempt Mississippi law. The court of appeals erred
in ruling otherwise.
A. 1. The federal election-day statutes establish a
uniform federal “election” day. 2 U.S.C. § 7; 2 U.S.C.
§ 1; 3 U.S.C. § 1. The core term uniting those statutes
is “election.” That word’s meaning thus dictates what
those statutes require of federal election day.
Start with plain meaning. An election is the
conclusive choice of an officer. When the Constitution
was ratified, election meant “final choice of an officer
by the duly qualified electors.” Newberry v. United
States, 256 U.S. 232, 250 (1921) (emphasis added).
Election had that same meaning in 1845, when the
statute setting the time for presidential elections was
first enacted. See ibid.; Noah Webster, An American
Dictionary of the English Language 288 (1841). In
1872, when Congress first set a uniform time for
electing Representatives, election had the same
meaning: “‘[t]he act of choosing a person to fill an
17
office.’” Foster v. Love, 522 U.S. 67, 71 (1997) (quoting
Noah Webster, An American Dictionary of the
English Language 433 (1869); emphasis added); see
Joseph E. Worcester, Dictionary of the English
Language 469 (1860) (“The act or the public ceremony
of choosing officers of government.”). When, in 1914,
Congress passed the statute setting the time for
electing Senators, election had the same meaning:
“The selecting of a person or persons for office, as by
ballot.” Funk and Wagnalls, Desk Standard
Dictionary 266 (1919) (emphasis added); see
Newberry, 256 U.S. at 250. Election retains that
meaning to this day. As this Court put it in 1941, an
election is “the expression by qualified electors of their
choice of candidates.” United States v. Classic, 313
U.S. 299, 318 (1941) (emphases added). And as this
Court said more recently, when 2 U.S.C. §§ 1 and 7
refer to “the election” of a Senator or Representative,
“they plainly refer to the combined actions of voters
and officials meant to make a final selection of an
officeholder.” Foster, 522 U.S. at 71 (emphasis added).
An election thus occurs when voters make their
choice of officers and that choice is conclusive—final.
Under the federal election-day statutes, then, election
day is the day by which voters must conclusively
choose federal officers. Although parts of the electoral
process can occur before and after that day, voters
cannot make their choice after that day, and the
choice cannot be conclusive before that day.
An election thus does not depend on when ballots
are received. The definitions set out above impose no
requirement of ballot receipt as part of the election
itself. Those definitions instead recognize that an
election occurs once voters make their conclusive
choice—which they do by marking and submitting
18
ballots by election day. Voters have then chosen and
their choice is conclusive: the election is over. Ballot
casting is thus materially different from ballot receipt.
Ballot receipt is, of course, critical to effectuating the
voters’ choice. But that is also true of counting votes.
Yet—as the court of appeals and respondents agree—
counting is not part of the election itself. App.10a,
13a. That is why counting votes lawfully can and does
occur after election day. See ibid. The same is true of
ballot receipt: it is critical, but it is not part of the
election itself.
This Court’s holdings confirm that plain-text
understanding. In Foster, this Court held that 2
U.S.C. §§ 1 and 7 preempted Louisiana’s “open
primary” law allowing Senators and Representatives
to be elected in October, “without any action to be
taken on federal election day.” 522 U.S. at 68-69, 74.
This Court ruled that, “[w]hen the federal [electionday] statutes speak of ‘the election’ of a Senator or
Representative, they plainly refer to the combined
actions of voters and officials meant to make a final
selection of an officeholder.” Id. at 71 (emphasis
added). So “a contested selection of candidates for a
congressional office that is concluded as a matter of
law before the federal election day, with no act in law
or in fact to take place on the date chosen by Congress,
clearly violates” federal law. Id. at 72 (emphasis
added). An election thus “may not be consummated
prior to federal election day.” Id. at 72 n.4 (emphasis
added). Under Foster, then, election day is the day to
“conclude[ ]” and “consummate[ ]” the election—
through a “final selection.” Id. at 71, 72 & n.4. That
occurs when voters have marked and submitted their
ballots as state law requires: ballots are then cast and
the final selection is concluded and consummated—
19
even if the final selection cannot be effectuated until
ballots are received and counted.
That view is reinforced by Republican National
Committee v. Democratic National Committee, 589
U.S. 423 (2020) (per curiam), which stayed an
injunction that allowed ballots to be mailed after
primary election day in Wisconsin. In granting that
relief, this Court distinguished “the date by which
ballots may be cast by voters” from “the date by which
ballots may be ... received by the municipal clerks,”
and ruled that extending the former date
“fundamentally alters the nature of the election.” Id.
at 424 (emphases added). “[A]llow[ing] voters to mail
their ballots after election day,” RNC declared, “would
fundamentally alter the nature of the election by
allowing voting ... after the election.” Id. at 426
(emphases added). This Court accordingly recognized
that ballot “cast[ing]” is “fundamental[ ]” to voting
and thus to the election itself, but ballot “recei[pt]” is
not. Id. at 424, 426. So when a State adopts a postelection-day ballot-receipt deadline, it is making a
permissible “policy choice.” Democratic National
Committee v. Wisconsin State Legislature, 141 S. Ct.
28, 34 (2020) (Kavanaugh, J., concurring in denial of
application to vacate stay); see id. at 32 (“variation” in
state
“election-deadline rules” “reflects
our
constitutional system of federalism”).
2. Mississippi law comports with the federal
election-day statutes.
Under Mississippi law, mail-in absentee voters—
like all other voters—make their conclusive choice of
federal officers by federal election day. Mississippi
law directs that, to be counted, mail-in absentee
ballots “must be postmarked on or before the date of
20
the election” and “received by the registrar no more
than five (5) business days after the election.” Miss.
Code Ann. § 23-15-637(1)(a). Under that law, a mailin absentee ballot is thus “cast” when it is mailed and
“timely cast” when it is postmarked on or before
election day. Id. § 23-15-637(1)(a), (2). The law thus
aligns with the ordinary understanding of casting a
ballot by mail. See RNC, 589 U.S. at 424 (equating
“cast[ing]” absentee ballots with “mail[ing] and
postmark[ing]” them). So Mississippi requires that
mail-in absentee ballots be cast by election day.
That framework harmonizes with federal law.
Because Mississippi law requires that mail-in
absentee ballots be cast by election day (“on or before
the date of the election”), Mississippi voters make
their choice by election day. Miss. Code Ann. § 23-15637(1)(a). And Mississippi voters cannot change their
votes after that date or submit votes after that date.
See id. §§ 23-15-581, 23-15-637(1)(a). So their choice,
made by election day, is conclusive: the “final selection
of an officeholder” occurs on federal election day
because ballots must be cast—marked and submitted
by mail—by that day. Foster, 522 U.S. at 71.
It does not matter that some ballots in Mississippi
may be received after election day. As explained, only
ballot casting is essential to the election. Mississippi
does not “allow voters to mail their ballots after
election day,” so it does not “allow[ ] voting ... after the
election.” RNC, 589 U.S. at 426 (emphases added).
Under Mississippi law, “no ‘final selection’ is made
after the federal election day.” App.79a. “All that
occurs after election day is the delivery and counting
of ballots cast on or before election day.” Ibid. Under
Mississippi law the election is “concluded” and
“consummated” on federal election day because by
21
that day Mississippi voters make a “final selection” of
officers. Foster, 522 U.S. at 71, 72 & n.4. Reasonable
people can disagree with Mississippi’s “policy choice”
to “require only that absentee ballots be mailed by
election day.” Wisconsin State Legislature, 141 S. Ct.
at 34 (Kavanaugh, J., concurring). But it is a choice
that the Constitution “authori[zes]” Mississippi to
make. Id. at 32 (noting that Mississippi is among the
States that “no longer require that absentee ballots be
received before election day”).
B. The court of appeals held that, under the federal
election-day statutes, “ballots must be both cast by
voters and received by state officials” by election day.
App.3a; see App.6a-24a. The court erred.
1. On text, although the court agreed that
preemption here turns on the “meaning” of election in
the federal election-day statutes, App.8a, the court
cast aside a premier aid to assessing plain meaning:
dictionaries. See, e.g., District of Columbia v. Heller,
554 U.S. 570, 581, 582, 584, 586, 587-88, 597 (2008)
(relying on dictionary definitions to construe Second
Amendment); Foster, 522 U.S. at 71 (relying on
dictionary definition of election to interpret statutes
at issue here). The court declared that dictionary
definitions “do not shed light on” Congress’s use of the
word “election” in the federal election-day statutes
because those definitions “make no mention of
deadlines or ballot receipt.” App.8a n.5. That was
error. App.38a-39a (Graves, J., dissenting). The
failure of any dictionary definition of “election” to
even mention ballot receipt is a strong signal that
ballot receipt is not part of an election. See Heller, 554
U.S. at 586 (faulting proposed definition because “[n]o
dictionary has ever adopted that definition”). When
evidence cuts against a conclusion, that does not
22
mean that the evidence is unhelpful. It means that
the conclusion is likely wrong. So it is here. The
dictionary definitions cited in this case all support the
view that ballot casting defines an election. E.g.,
App.8a n.5; supra pp. 16-17. None supports the view
that ballot receipt defines an election.
2. On precedent, the court drew from Foster three
“elements” that must occur by election day—“official
action,” “finality,” “consummation”—and faulted
Mississippi law on each. App.9a; see App.8a-13a. The
court erred. See App.39a-47a (Graves, J., dissenting).
First, the court ruled that the requirement for
“official action” means that a ballot can be cast only
when it is “received” by election officials. App.9a-10a.
The court cited no authority saying that: it just
deemed the matter “obvious.” App.10a. But the
authorities set out above say otherwise: all show that
an “election” focuses on the voters’ choice and imposes
no ballot-receipt requirement. Supra pp. 16-19. So an
election official’s only necessary involvement in the
election is giving a voter the means to make a final
selection—such as by offering a ballot and a method
to cast it. That occurs in Mississippi.
The court suggested that if a ballot could be “cast”
before it is received then a State could allow voters to
mark their ballots and then “place them in a drawer”
or “post a picture on social media.” App.10a. But the
panel cited nothing to show that its hypotheticals
satisfy any plausible understanding of ballot casting.
And there is no dispute that an election requires at
least ballot casting—marking and submitting a ballot
to election officials. Mississippi’s law requires ballot
casting. Indeed, that law requires that a mail-in
absentee ballot be “postmarked on or before” election
23
day and thus bear an objective indicator that it is
cast—and cast timely. Miss. Code Ann. § 23-15637(1)(a). That law has no resemblance to the panel’s
hypotheticals.
Second, the court ruled that an election requires
“the polity’s” final choice of officers—rather than just
individual voters’ selections—and that the polity’s
“final[ ]” choice is not made until “all voters’ selections
are received.” App.10a. The court again cited nothing
to support this view. And under Mississippi law, the
polity does make its choice by election day: every vote
must be cast by that day, so the polity’s final choice is
made by that day. Even though “officials are still
receiving ballots,” “the result is fixed” on election day
and the election is not “ongoing”: voting is closed on
election day. Contra ibid. And if (as the court thought)
the election were “ongoing” when the State is
receiving ballots, it is also ongoing when the State is
counting ballots: the “selections” are “done and
final”—the result is “fixed”—at both stages. Ibid.
That means that ballot casting—not ballot receipt—
defines an “election.”
The court thought that state agency regulations
support its view. App.11a. But those regulations do
not provide that ballots become “final” after election
day. Contra ibid. They instead (a) prevent a voter
from casting an absentee ballot and then casting a
second ballot in person on election day, and
(b) provide a backstop method of casting an affidavit
ballot in person on election day that will be counted
only if a mail-in ballot is untimely or flawed. Under
those regulations, a mail-in absentee ballot is the
voter’s “final vote” (1 Miss. Admin. Code pt. 17, R. 2.1)
and the voter cannot “cast a regular ballot” “at the
polling place on election day” (id., R. 2.3(a)). A voter
24
who arrives at the polling place on election day can
cast “an affidavit ballot”—but that affidavit ballot will
be accepted and counted only if the voter’s “absentee
ballot has not been received within five (5) business
days after the election” or is “rejected” because of a
flaw. Id., R. 2.3. So a mail-in absentee ballot is final
when mailed—which must occur by election day. And
affidavit ballots are all cast and received on election
day—and thus also satisfy any election-day deadline.
The court said that the postal service “permits
senders to recall mail,” so mail-in ballots “are less
final than Mississippi claims.” App.12a. The court
erred. Respondents never presented evidence that a
mail-in ballot has ever been—or as a practical matter
could ever be—recalled after mailing. Cf. App.45a-46a
& n.4 (Graves, J., dissenting). Respondents never
suggested such a possibility until their appellate reply
briefs. And they were unable to defend that claim at
oral argument. The court should not have relied on
that forfeited claim to condemn Mississippi’s law.
Third, the court ruled that an election is
“consummated” only when the last ballot is received
because officials then “know there are X ballots to
count.” App.13a; see App.12a-13a. But the election is
just as consummated when no more ballots can be
cast: the election is then finished and decided. Under
Mississippi law, that occurs on federal election day.
The court brushed aside Republican National
Committee v. Democratic National Committee, which
stayed an injunction allowing ballots to be mailed
after primary election day in Wisconsin. The court
claimed that RNC “is equally consistent with the
ballot-receipt requirement” as it is with the view that
an election requires only ballot casting. App.24a.
25
Nonsense. RNC distinguished ballot “cast[ing]” from
ballot “recei[pt]”; it emphasized that “[e]xtending the
date by which ballots may be cast by voters—not just
received by the municipal clerks but cast by voters—
for an additional six days after the scheduled election
day fundamentally alters the nature of the election”;
and it reemphasized that “allow[ing] voters to mail
their ballots after election day” is what “would
fundamentally alter the nature of the election by
allowing voting for six additional days after the
election.” 589 U.S. at 424, 426. The court below
declared that “the language of an opinion is not
always to be parsed as though we were dealing with
language of a statute.” App.24a. Granted. But this not
about mere “language” in an opinion: it is about an
on-point holding of this Court. The court of appeals
did not follow that holding.
3. On history, the court said that until recently
States generally required ballot receipt by election
day. App.14a-18a. Even if that were true, but see, e.g.,
App.47a-51a (Graves, J., dissenting); U.S. Amicus Br.
19-22, the federal election-day statutes would not
block States from adopting a different practice. The
court cited nothing—no judicial decision, no
legislative finding, no legislator’s statement, no
treatise, nothing—to show that any State imposed an
election-day ballot-receipt deadline because it
thought the federal election-day statutes require it.
Contra App.14a (“For over a century after Congress
established a uniform federal Election Day, States
understood those statutes to mean” that ballots must
be received by that day.) (emphasis added). At most
this history shows that many States have viewed
election-day ballot receipt as good policy. But federal
law does not mandate that “policy choice.” Democratic
26
National Committee v. Wisconsin State Legislature,
141 S. Ct. 28, 34 (2020) (Kavanaugh, J., concurring).
Indeed, there is a more logical inference from these
election-day ballot-receipt practices than the one the
court of appeals drew: for much of our history there
was little or no reason for another practice. For 120
years after the Founding—and for decades after the
main federal election-day statutes were enacted—
States largely required voting to occur in person. See,
e.g., Paul G. Steinbicker, Absentee Voting in the
United States, 32 Am. Pol. Sci. Rev. 898, 898 (1938)
(before 1913, only two States had general civilian
absentee-voting laws). When people vote in person on
election day, it makes little sense for them to do
anything but immediately cast a ballot that is also
immediately received. Cf. App.14a (“By necessity,
early American voting occurred contemporaneously
with receipt of votes.”). That does not mean that the
federal election-day statutes require that practice. As
the world changed and more States adopted “absent
voting,” States had reason to change ballot-receipt
practices. Charles Kettleborough, Absent Voting, 11
Am. Pol. Sci. Rev. 320, 320 (1917) (connecting
expansion of absent voting in 1913-1917 to the rise of
work requiring “absence from home” on election day—
as with railroad employees and traveling salesmen).
Some did change practices; some did not. See
Steinbicker 905-06 (“usual” ballot-receipt deadline in
early-20th-century absentee-voting laws was on or
before election day, but deadlines “range[d] from six
days before to six days after” election day). The
federal election-day statutes allow both policy choices.
4. The court claimed that other federal statutes
are “silent on the deadline for ballot receipt” or “show
that Congress knew how to authorize post-Election
27
Day voting when it wanted to do so,” App.19a, 20a
(emphasis omitted); see App.19a-23a. But no statute
the court invoked shows that the federal election-day
statutes require ballot receipt by election day.
The court cited the Help America Vote Act, which
sets a voting procedure, using provisional ballots,
when a voter’s eligibility is in question. App.20a-21a.
The court said: “All jurisdictions that issue such
ballots accept them after Election Day.” App.21a. All
the court cited on that point is the United States’ brief
noting that this is the universal practice. U.S. Amicus
Br. 16. But HAVA’s text is silent on provisional-ballotreceipt deadlines. See 52 U.S.C. § 21082(a). Because
(according to the court below) “congressional silence”
means “nothing at all,” App.20a, on the court’s own
reasoning HAVA does not authorize post-election-day
ballot receipt—let alone confirm that the federal
election-day statutes require ballot receipt by election
day, see ibid. Worse yet: On the court of appeals’
reasoning, the laws of 48 States allowing postelection-day receipt of provisional HAVA ballots (U.S.
Amicus Br. 16) are subject to the federal election-day
statutes and are all preempted.
The court claimed that UOCAVA “permits postElection Day balloting, but it does so through its
statutory text.” App.22a. This is wrong too. UOCAVA
says: “The Attorney General may bring a civil action
in an appropriate district court for such declaratory
or injunctive relief as may be necessary to carry out
this chapter.” 52 U.S.C. § 20307(a). That text is silent
on ballot-receipt deadlines. Indeed, just pages before
saying that UOCAVA’s “text” permits “post-Election
Day balloting,” App.22a, the court declared that
“[n]othing in” UOCAVA “says that States are allowed
to accept and count ballots received after Election
28
Day,” App.19a; see ibid. (UOCAVA “say[s] nothing
about the date or timing of ballot receipt”). Worse: On
the court’s own view of congressional silence, the
federal election-day statutes clearly bar post-electionday receipt of UOCAVA ballots—and so render
unlawful the injunctions “extending ballot-receipt
deadlines” the United States has obtained in “many”
UOCAVA cases. App.22a; see United States v.
Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483,
496 (2001) (equity courts cannot issue injunctions
that override a “clear and valid legislative
command”).
Last, the court cited 2 U.S.C. § 8(a) and 3 U.S.C.
§ 21(1).
App.22a-23a.
The
former
allows
congressional elections on days other than federal
election day for special elections to fill vacancies and
for runoff elections. The latter defines “election day”
in 3 U.S.C. § 1 to be “the Tuesday next after the first
Monday in November” in every fourth year, but has
an exception: if a State that “appoints electors by
popular vote” timely “modifies the period of voting” in
response to certain “force majeure events,” “election
day” will “include the modified period of voting.” The
court viewed these statutes as exceptions to the rule
that elections be held on federal election day and
believed that they show that, “[w]here Congress
wants to make exceptions to” the federal election-day
statutes, “it has done so.” App.23a. Even if that were
right, it would not show that the federal election-day
statutes require ballot receipt—rather than ballot
casting—by election day. And because the “election”
requires only ballot casting, a State that requires only
ballot casting by election day is not seeking an
exception to those statutes—it is following them.
29
5. In a concurrence in the denial of rehearing en
banc, the panel members claimed that rejecting
preemption here would mean that “federal law
imposes no time limits at all on ballot acceptance”—
so States could allow ballot receipt “2 months, or even
2 years, after Election Day.” App.34a. This claim has
many flaws. One: The Constitution supplies deadlines
that force action. The Twentieth Amendment
provides that “the terms” of “the President and Vice
President” “shall ... begin” “at noon on the 20th day of
January” and that “the terms” of “Senators and
Representatives” “shall ... begin” “at noon on the 3d
day of January.” U.S. Const. amend. XX, § 1. Two: If
Congress is dissatisfied with state ballot-receipt
deadlines, it can act. Id. art. I, § 4, cl. 1; id. art. II, § 1,
cl. 4. Three: Congress has imposed deadlines. E.g., 2
U.S.C. §§ 1, 7 (recognizing January 3 as the start of
congressional terms); 3 U.S.C. §§ 5(a)(1) (timing of
certification of electors), 7 (each State’s electors “shall
meet and give their votes on the first Tuesday after
the second Wednesday in December”); see App.54a
(Graves, J., dissenting).
The concurrence also claimed that, without an
election-day ballot-receipt deadline, States could
“engage in gamesmanship, experiment with
deadlines, and renew the very ills Congress sought to
eliminate: fraud, uncertainty, and delay.” App.34a.
The concurrence offered no support for that claim.
And Mississippi law produces none of the ills that the
federal election-day statutes address. Mississippi law
respects the “uniform[ity]” that Congress sought to
achieve when it “mandate[d] holding all elections for
Congress and the Presidency on a single day
throughout the Union.” Foster v. Love, 522 U.S. 67,
69, 70 (1997). Mississippi voters make a conclusive
30
choice of federal officers by federal election day. And
Mississippi law does not “distort[ ]” “the voting
process” by allowing “the results of an early federal
election in one State” to “influence later voting in
other States.” Id. at 73. Mississippi’s absentee ballots
are not counted until the polls close on election day.
See Miss. Code Ann. § 23-15-639(1)(c). And
Mississippi does not “burden” citizens by “forc[ing]”
them “to turn out on two different election days to
make final selections of federal officers in Presidential
election years.” 522 U.S. at 73. In Mississippi, all
federal elections occur the same day. Miss. Code Ann.
§§ 23-15-781, 23-15-1033, 23-15-1041.
From top to bottom, the court of appeals erred.
Federal law does not preempt Mississippi law.
II. The Decision Below Warrants Review.
The decision below raises issues of exceptional
importance and warrants this Court’s review.
The court of appeals deemed unconstitutional a
state law that passed by wide margins. See
Mississippi Legislature, 2024 Regular Session, House
Bill 1406, https://bit.ly/43RAHr1. Whenever a federal
court invalidates a state law, the matter is important.
See Abbott v. Perez, 585 U.S. 579, 602 n.17 (2018).
Here it is especially so. The decision below invalidates
a state law regulating elections—a matter the
Constitution authorizes States to address—and thus
strips Mississippi of an important power. U.S. Const.
art. I, § 4, cl. 1; id. art. II, § 1, cl. 2. And it does so
based on serious errors of law. Supra Part I.
The decision has profound ramifications. The rule
the court of appeals adopted would invalidate laws in
most States. App.56a (Graves, J., dissenting). About
31
30 States and the District of Columbia accept some
ballots that are mailed by election day but received
after that day. See, e.g., National Conference of State
Legislatures, Table 11: Receipt and Postmark
Deadlines for Absentee/Mail Ballots (updated May 12,
2025), https://bit.ly/4mLlbV1. The decision below
imperils laws in all those States—and may doom the
laws of the 48 States that (according to the court
below) allow post-election-day receipt of provisional
HAVA ballots. Supra p. 27. The court suggested that
its holding allows post-election-day receipt of HAVA
and UOCAVA ballots. App.20a-22a; see also App.33a34a (Oldham, J., concurring). That suggestion defies
the court’s own reasoning and so provides no
assurance at all. Supra pp. 27-28. The court touted
“the limited nature” of its decision. App.18a. The
decision is not “limited.” It adopts a rule that would
“necessarily invalidate (or at least call into question)”
laws in most States and thus has significant
nationwide “implications.” Democratic National
Committee v. Wisconsin State Legislature, 141 S. Ct.
28, 35 (2020) (Kavanaugh, J., concurring).
This Court’s review is warranted now. If left to
stand, the decision below will spark litigation
challenging many States’ laws—risking chaos in the
next federal elections, particularly given the tendency
of election-law claims to spur last-minute lawsuits. In
the meantime, the decision will cast a shadow over
every state law allowing post-election-day ballot
receipt in federal elections. Less than 18 months
remain before the next federal election—and electoral
processes start much sooner. State legislatures need
to know what rule governs post-election-day ballot
receipt. If it is the Fifth Circuit’s rule, legislatures
need to know that so that they can change their laws
32
to comport with that rule. If it is not the Fifth Circuit’s
rule, legislatures need to know that so that they can
appreciate their policy options. And States need to
know all this before lawsuits are upon them. This case
provides an opportunity to answer the question
presented “in the ordinary course of litigation rather
than in emergency proceedings on the eve of an
election.” Pet. for Cert. 27, Bost v. Illinois Board of
Elections, No. 24-568, cert. granted, — S. Ct. —, 2025
WL 1549779 (June 2, 2025) (granting review on issue
of candidate standing in a case “involv[ing] nearly
identical claims” to those here, Bost Pet. 30 n.12).
When a lower court’s invalidation of a state law
raises issues of exceptional importance, this Court
has granted certiorari even without a circuit conflict.
The most on-point example is Foster. See Foster Pet.
for Cert. 7-15, No. 96-670. If review was warranted in
Foster, it is warranted here: the open-primary law at
issue in Foster was apparently unique; post-electionday ballot-receipt laws are widespread; so this case’s
national impact vastly exceeds Foster’s. This Court
has all it needs to resolve the question presented: The
panel decision is countered by a thorough dissent
from the denial of rehearing en banc and is
complemented by a responsive concurrence joined by
all panel members. Together those opinions air the
key arguments in a case that boils down to construing
straightforward statutes.
This case is an excellent vehicle. The case was
decided on summary judgment and presents a purely
legal question. The court of appeals squarely decided
that question. That issue is outcome determinative.
There is a clean Article III case. App.6a n.3. Although
the court of appeals remanded the preemption claim
for “further proceedings” on relief, App.24a, the case
33
is not interlocutory in any way that matters. The
court of appeals’ decision amounts to a direction to
enter at least a declaratory judgment against
Mississippi’s law. The core result on remand—the
voiding of Mississippi’s law—is foreordained. There is
no point to awaiting further lower-court proceedings.
Beyond all this, ballots cast by—but received
after—election day can swing close races and thus the
course of the country. Every practical consideration
favors review now, in this case. Waiting will invite
chaos, confusion, and unfairness. This Court can
avert all that by granting review now and reversing.
CONCLUSION
The petition should be granted.
Respectfully submitted.
LYNN FITCH
Attorney General
SCOTT G. STEWART
Solicitor General
Counsel of Record
JUSTIN L. MATHENY
ANTHONY M. SHULTS
Deputy Solicitors General
MISSISSIPPI ATTORNEY
GENERAL’S OFFICE
P.O. Box 220
Jackson, MS 39205-0220
scott.stewart@ago.ms.gov
(601) 359-3680
Counsel for Petitioner
June 2025
APPENDIX
APPENDIX
TABLE OF CONTENTS
Page
APPENDIX A: Court of Appeals Opinion
(Oct. 25, 2024) ..............................1a
APPENDIX B: Court of Appeals Order Denying
Rehearing (Mar. 14, 2025) ........27a
APPENDIX C: District Court Memorandum Opinion
and Order (July 28, 2024) .........59a
APPENDIX D: Constitutional, Statutory, and
Regulatory Provisions:
U.S. Const. art. I, § 4, cl. 1 ........86a
U.S. Const. art. II, § 1, cl. 2 .......86a
U.S. Const. art. II, § 1, cl. 4 .......86a
U.S. Const. art. VI, cl. 2.............86a
2 U.S.C. § 1 ................................87a
2 U.S.C. § 7 ................................87a
3 U.S.C. § 1 ................................87a
3 U.S.C. § 21 ..............................88a
Miss. Code Ann. § 23-15-637 .....88a
1 Miss. Admin. Code pt. 17,
R. 2.1 ........................................90a
1 Miss. Admin. Code pt. 17,
R. 2.3 ........................................90a
1a
APPENDIX A
United States Court of Appeals
for the Fifth Circuit
[Filed October 25, 2024]
____________
No. 24-60395
____________
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 members
of the Harrison County Election Commission; BECKY
PAYNE, in their official capacities as members of the
Harrison County Election Commission; BARBARA
KIMBALL, in their official capacities as members of the
Harrison County Election Commission; CHRISTENE
BRICE, in their official capacities as members 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.
_________________________________________________
2a
LIBERTARIAN PARTY OF MISSISSIPPI,
Plaintiff–Appellant,
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 members of
the Harrison County Election Commission; BECKY
PAYNE, in their official capacities as members of the
Harrison County Election Commission; BARBARA
KIMBALL, in their official capacities as members of the
Harrison County Election Commission; CRISTENE
BRICE, in their official capacities as members 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,
3a
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 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 Electors 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 Electors 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 Senators 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 Regulations.” U.S.
CONST. art. I, § 4, cl. 1. The Elections Clause imposes
a “duty” upon States to hold elections for federal
4a
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
presidential elections resulted in many States having
two separate days for federal elections. Id. at 141. As
a result, Congress scheduled all House elections 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 Congress 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 accordance 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.
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.
1
5a
B
During the COVID-19 pandemic, Mississippi
amended its election laws to accept absentee ballots
“postmarked on or before the date of the election 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 § 2315-637(1)(a). Now, after the pandemic, Mississippi
has preserved that deadline and amended the statute
to cover absentee ballots transmitted by common
carriers in addition to the United States Postal
Service. 2024 Miss. Laws H.B. 1406; MISS. CODE § 2315-637(1)(a).
On January 26, 2024, plaintiffs Republican
National Committee, Mississippi Republican Party,
James Perry, and Matthew Lamb sued various state
officials in the Southern District of Mississippi to
enjoin them from enforcing the State’s post-election
ballot deadline. On February 5, 2024, plaintiff
Libertarian Party of Mississippi brought a
functionally identical lawsuit. 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
Fourteenth Amendments. The district court
consolidated the cases.2
2 The district court also granted a motion to intervene as
defendants by Defendant-Appellees Vet Voice Foundation and
Mississippi Alliance for Retired Americans.
6a
Plaintiffs and defendants jointly moved to
schedule briefing on cross-motions for summary
judgment. The district court granted defendants’
motion 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.
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” presumption of
state regulation, subject to Congress’s powerful check.
Foster, 522 U.S. at 69. States can regulate many
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).
7a
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 Mississippi’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 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 preempt, 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)
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).
4
8a
(“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 employ 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 understanding of the statutory text.5 That
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, ETYMOLOGICAL AND PRONOUNCING
9a
case involved Louisiana’s open primary 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
proceeded 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 definitional bone,” three definitional
elements
bear
emphasis:
(1) official
action,
(2) finality, and (3) consummation. Ibid. (discussing 2
U.S.C. § 7). We discuss 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 voters 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.
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.”).
10a
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 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.” Newberry 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 officeholder.
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
11a
voter has made his final selection upon marking his
ballot, the entire polity must do so for the overall
election to conclude. 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 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 holding 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,
12a
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
reference 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.
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 Integrity
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
13a
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 suggests 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) ballots after Election Day. Harris v. Fla.
Elections Canvassing Comm’n, 122 F. 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, counting 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.
14a
C
History confirms that “election” includes both
ballot casting and ballot 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
auction place,” rife with “bribery and intimidation.”
Id. at 201–02. Adoption of the “Australian system”
(including universal ballots and private polling
booths) in the early 1890s addressed these issues. Id.
at 202–05. The Australian 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.
15a
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). Before 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 invented
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 battlefield, 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
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.
16a
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 receipt 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 further limited it to only
wartime elections. P. Orman Ray, Military AbsentVoting Laws, 12 AM. POL. SCI. REV. 461, 461–62
(1918). Nine States required 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 imposed the same Election Day
deadline for receiving ballots. Washington State
permitted voters to return ballots to be counted in a
voter’s home county after 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
17a
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 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-andcampaigns/the-evolution-of-absentee-mail-voting-
18a
laws-2020-through-2022
[https://perma.cc/8ABZYFXC]. In advance of the 2020 general election, seven
States extended their ballot-receipt 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 reverted to earlier deadlines.
Ibid. All told, as of November 2022, 18 States and the
District of Columbia permit post-Election Day receipt.
See ibid.
The considerable historical support for absentee
voting says nothing about whether States can extend
the election past the uniform, singular Election 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 original 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 mailbox rule. We then (C) discuss relief and the
limited nature of today’s decision.
19a
A
Mississippi offers several federal statutes
purporting to show Congress “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
civilians 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 election.” 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 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 amendments established a uniform
absentee-ballot scheme for presidential elections. See
52 U.S.C. § 10502. And like UOCAVA, the 1970
Amendments 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 parties
and amici suffer from the same deficiencies: All are
20a
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
Mississippi’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]ongressional 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 “oftexpressed skepticism toward reading the tea leaves of
congressional inaction”).
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 election officials, who then determine his
21a
eligibility to vote under state law. Id. § 21082(a)(1)–
(3). Upon that verification, “the individual’s
provisional ballot 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 potentially 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 touching 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 suspend its normal operations in a
later statute.
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
22a
displaces or impliedly repeals the longstanding
general rule that the federal Election Day is the
singular day on which the ballot box closes. Rather,
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 injunctive 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/J8ASX3K6. 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 contention 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 federal
Election Day in the event of a vacancy, including
23a
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
“creates an exception to section 7’s absolute rule.”
Busbee v. Smith, 549 F. Supp. 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
abrogate the uniform Election Day in other, nonexcepted 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 contract is formed when the offeree’s
acceptance is “put out of [his] possession, without
regard to whether it ever reaches the offeror.”
Restatement (Second) 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 return. 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 discussing 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 preliminary
24a
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 extraordinary 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
ballots equates to voting, and it further reads the
Supreme Court as embracing 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 ballotreceipt requirement. If voters 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. Sonotone 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 renewed
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
25a
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
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 Fourteenth
Amendments and brought actions under 42 U.S.C.
§ 1983. The district court concluded that PlaintiffAppellants’ 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
plaintiffs’
§ 1983
claims
and
remand
for
reconsideration.
*
*
*
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.
6
26a
As Justice Kavanaugh recently emphasized: “To
state the obvious, a State cannot conduct an election
without deadlines . . . A deadline is not
unconstitutional 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 application 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.
27a
APPENDIX B
United States Court of Appeals
for the Fifth Circuit
[Filed March 14, 2025]
____________
No. 24-60395
____________
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 members
of the Harrison County Election Commission; BECKY
PAYNE, in their official capacities as members of the
Harrison County Election Commission; BARBARA
KIMBALL, in their official capacities as members of the
Harrison County Election Commission; CHRISTENE
BRICE, in their official capacities as members 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,
________________________________
28a
LIBERTARIAN PARTY OF MISSISSIPPI,
Plaintiff–Appellant,
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 members of
the Harrison County Election Commission; BECKY
PAYNE, in their official capacities as members of the
Harrison County Election Commission; BARBARA
KIMBALL, in their official capacities as members of the
Harrison County Election Commission; CRISTENE
BRICE, in their official capacities as members 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.
29a
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:24-CV-25
USDC No. 1:24-CV-37
______________________________
ON PETITION FOR REHEARING EN BANC
Before HO, DUNCAN, and OLDHAM, Circuit Judges.
PER CURIAM:*
Treating the petition for rehearing en banc as a
petition for panel rehearing (5TH CIR. R.35 I.O.P.), the
petition for panel rehearing is DENIED. The petition
for rehearing en banc is DENIED because, at the
request of one of its members, the court was polled,
and a majority did not vote in favor of rehearing (FED.
R. APP. P.35 and 5TH CIR. R.35).
In the en banc poll, five judges voted in favor of
rehearing (JUDGES STEWART, GRAVES, HIGGINSON,
DOUGLAS, AND RAMIREZ), and ten judges voted against
rehearing (CHIEF JUDGE ELROD, and JUDGES JONES,
SMITH, RICHMAN, HAYNES, WILLETT, HO, DUNCAN,
ENGELHARDT, and OLDHAM).
* Judges SOUTHWICK and WILSON did not participate in the
consideration of rehearing en banc.
30a
JAMES C. HO, Circuit Judge, concurring in the denial
of rehearing en banc:
This is not the first time (and it surely won’t be the
last) that opposing political interests will cross swords
over whether and how election deadlines should be
enforced. In Foster v. Love, 522 U.S. 67 (1997), our
court reached the same outcome that we do today—
that is, we set aside a state law because it conflicts
with deadlines set by Congress. The Supreme Court
unanimously affirmed. So we applied the same
principles to the state law challenged here.
My distinguished colleague nevertheless suggests
that this case may be unusual (and thus remarkable)
because “topflight lawyers . . . unaffiliated with the
parties” have seen fit to offer their views on this case
pro bono. Post, at _ (Higginson, J., dissenting from the
denial of rehearing en banc). The implication is that
the panel decision may be so off the mark that leading
members of the profession have felt compelled to
speak out.
But there’s another explanation: The pro bono
activity in this case may just reflect the institutional
bias at many of the nation’s largest law firms.
Legal scholars have documented how major law
firms consistently favor one side in highly charged
disputes like this one. See, e.g., Derek T. Muller,
Ideological Leanings in Likely Pro Bono Biglaw
Amicus Briefs in the United States Supreme Court,
HARV. J.L. & PUB. POL’Y PER CURIAM (2024); Eugene
Scalia, John Adams, Legal Representation, and the
“Cancel Culture”, 44 HARV. J.L. & PUB. POL’Y 333,
335–36 (2021).
This evidence has led to the belief that major firms
are falling short of “the great traditions of the
31a
profession.” Scalia, 44 HARV. J.L. & PUB. POL’Y at 334.
The concern is that they have abandoned neutral
principles of representation, and instead engage in
ideological or political discrimination in the cases that
they’re willing to take on. See, e.g., id. at 338
(“representing a person with whom we may disagree
is a hallowed, essential tradition of the profession”);
Lefebure v. D’Aquilla, 15 F.4th 670, 675 n.1 (5th Cir.
2021) (same). Moreover, professional traditions may
not be the only thing that firms are failing to uphold.
Two years ago, the Justice Department advised our
court that much of the institutional bias at major
firms may also include workplace policies that
discriminate on the basis of race or sex—yet remain
fashionable in many legal circles. See Hamilton v.
Dallas County, 79 F.4th 494, 509 (5th Cir. 2023) (Ho,
J., concurring) (quoting Civil Rights Division
asserting that it is unlawful for firms to “only . . .
invite women” to certain career events, or to issue
“work assignments . . . on the basis of race,” and
agreeing that “a lot of law firms” violate Title VII of
the Civil Rights Act).
To be sure, evidence of political and other forms of
bias doesn’t by itself make a particular legal position
right or wrong in any given case. But it does mean
that we shouldn’t be surprised when “topflight” firms
consistently jump in on only one side of politically
charged disputes, including this one—whether the
law actually supports their position or not. Nor should
the firms themselves be surprised when others take
notice that they are no longer abiding by the
principles of the profession, and react accordingly.
It should go without saying, of course, that
licensed attorneys have the same right to opine as any
other American citizen—whether their views are
32a
principled or partisan. Indeed, motivated reasoning is
precisely why clients retain counsel.
But then that’s exactly how we should treat their
work—as motivated lawyering designed to reach a
predetermined result. And whatever firms may
choose to do, our duty as judges remains the same—
to apply the law in a consistent and principled
manner, regardless of whose ox is gored. That
includes resolving conflicts between state law and the
Constitution, no matter what some lawyers might say
about it.
33a
ANDREW S. OLDHAM, Circuit Judge, joined by SMITH,
HO and DUNCAN, Circuit Judges, concurring in the
denial of rehearing en banc:
I do not recognize the panel decision described by
my esteemed dissenting colleagues. With greatest
respect, the panel decision did not hold that the
States’ “common practice” of “count[ing] timely-cast
ballots received after Election Day [] was preempted
by federal law.” Post, at 9–10 (Graves, J., dissenting
from denial of rehearing en banc). It is absolutely true
that many States under different circumstances
sometimes accept ballots received after Election Day.
See id. at 9 (tallying 28 States). It is also true that
federal statutes like the Uniformed and Overseas
Citizens Absentee Voting Act (“UOCAVA”) or the
Help America Vote Act (“HAVA”) authorize such
receipt for narrow classes of voters described by
federal law. The question presented to the panel was
whether, in the absence of any federal statute
authorizing any deviation from the uniform Election
Day requirement, States nonetheless have freedom to
accept ballots for as long as they would like. The panel
held no. But it explicitly recognized that numerous
States—including many if not all of the ones invoked
as bugaboos by the dissenting opinion—obviously can
accept ballots after Election Day under circumstances
authorized by federal law. See Republican Nat’l
Comm. v. Wetzel, 120 F.4th 200, 211–13 (5th Cir.
2024) (explaining that UOCAVA, HAVA, and other
federal laws authorizing States to accept ballots
received after Election Day show that Congress
knows how to make such exceptions to the general
federal deadline); compare post, at 9 (ignoring what
the panel actually held and asserting the panel held
“that ballot receipt laws in at least twenty-eight
34a
states and the District of Columbia are preempted by
federal law[]”).
According to the dissenting opinion, States should
be free to accept ballots for as long as they’d like after
Election Day. That is, of course, a question for
Congress. But even if it was a question for federal
judges, do our dissenting colleagues really think that
federal law imposes no time limits at all on ballot
acceptance? True, statutory deadlines prescribe dates
by which the certification of presidential electors
must occur. Post, at 24 (Graves, J., dissenting from
denial of rehearing en banc). At best, those provide a
last-ditch backstop—several weeks after Election
Day. At worst, they permit States to engage in
gamesmanship, experiment with deadlines, and
renew the very ills Congress sought to eliminate:
fraud, uncertainty, and delay. See Republican Nat’l
Comm., 120 F.4th at 204 (citing CONG. GLOBE, 28th
Cong. 2d Sess. 14–15, 29 (1844)). And nothing
whatsoever prevents the States from innovating with
ever-later ballot receipt deadlines 2 months, or even 2
years, after Election Day in congressional elections.
The dissenting opinion’s only response is to say States
are unlikely to do that—but such pragmatic
assurances only underscore that the dissenting
opinion lacks any legal limit.
The opinion the dissenters wanted to rehear en
banc and the opinion the panel wrote are very
different animals. I concur in the court’s decision not
to pretend they’re the same.
35a
JAMES E. GRAVES, JR., Circuit Judge, joined by
STEWART, HIGGINSON, DOUGLAS, and RAMIREZ,
Circuit Judges, dissenting from the denial of
rehearing en banc:
I would grant the petition for rehearing. At a
minimum, this case presents a question of exceptional
importance: whether federal law prohibits states from
counting valid ballots that are timely cast and
received by election officials within a time period
designated by state law. The substantial, if not
overwhelming, weight of authority—including
dictionary definitions, federal and state caselaw, and
legislative history—counsels against the preemptive
interpretation that the panel adopted. Moreover, the
opinion conflicts with the tradition that forms the
bedrock for our nation’s governance—federalism—
which vests states with substantial discretion to
regulate the intricacies of federal elections. Simply
stated, federal law does not mandate that ballots be
received by state officials before Election Day’s
conclusion, and the panel’s contrary holding is
erroneous.
I.
In 2020, during the COVID-19 pandemic,
Mississippi lawmakers worked in bipartisan fashion
to craft and pass House Bill 1521. The legislation
amended the Mississippi Code to allow the counting
of absentee ballots that were (1) mailed by Election
Day, and (2) received by the applicable county
registrar within five business days of Election Day.
MISS. CODE. § 23-15-637(1)(a).
Upon H.B. 1521’s enactment, Mississippi joined a
significant number of states that permit the counting
of timely-cast ballots received within a designated
36a
period after Election Day. During the 2024
presidential election, eighteen states and the District
of Columbia counted valid absentee ballots that were
postmarked by Election Day and received by election
officials within a pre-established, post-Election Day
period. Deadlines for a ballot’s postmark and timely
receipt by election officials are determined on a stateby-state basis. Mississippi, as discussed above,
requires an Election Day postmark and receipt within
five business days of Election Day, while Texas
instructs that absentee ballots be “placed for delivery
by mail or common or contract carrier before election
day” and arrive “not later than 5 p.m. on the day after
election day.” MISS. CODE. § 23-15-637(1)(a); TEX.
ELEC. CODE § 86.007(a)(2). Ten additional states
allow for post-Election Day receipt of ballots cast by
overseas voters. In all, then, twenty-eight states and
the District of Columbia allow the counting of at least
some absentee ballots that were mailed by Election
Day and received by election officials during a postElection Day period. See Table 11: Receipt and
Postmark Deadlines for Absentee/Mail Ballots, NAT’L
CONF. OF STATE LEGISLATURES (Feb. 22, 2025),
https://www.ncsl.org/elections-and-campaigns/table11-receipt-and-postmark-deadlines-for-absenteemail-ballots.
Despite more recent developments, absentee
voting is not a pandemic-created phenomenon. The
method has roots dating back to colonial America: in
1775, the town of Hollis, New Hampshire allowed
soldiers who were away fighting in the Continental
Army to vote “as if the men were present themselves.”
Hon. Samuel T. Worcester, Town of Hollis, N.H., in
the War of the Revolution, in 30 NEW ENGLAND
HISTORICAL & GENEALOGICAL REGISTER 288, 293
37a
(1876). During the Civil War, states devised a variety
of methods to collect and transport battlefield ballots
back to home precincts in time for canvassing. See
generally JOSIAH HENRY BENTON, VOTING IN THE
FIELD: A FORGOTTEN CHAPTER OF THE CIVIL WAR
(1915). And throughout the twentieth century,
numerous states extended the benefits of absentee
voting to ordinary civilians; many, as noted above,
allowed ballots to arrive after Election Day to broaden
voting access and ease burdens on mail carriers and
election officials.
In October 2024, a panel of this court concluded
that this common practice—for states to count timelycast ballots received after Election Day—was
preempted by federal law. Republican Nat’l Comm. v.
Wetzel, 120 F.4th 200 (5th Cir. 2024). The opinion
contends that a federal statute establishing a uniform
day for federal elections, when paired with the
Constitution’s Elections Clause, requires all ballots to
be both “cast by voters and received by state officials”
by the end of Election Day. Id. at 204 (emphases in
original). For the reasons discussed below, I am
wholly unconvinced that federal law supports the
panel’s conclusion.
II.
Federal law sets “the day for the election” as the
first Tuesday that occurs after the first Monday in an
even-numbered year. 2 U.S.C. § 7 (House of
Representatives); 3 U.S.C. § 21 (presidential and vicepresidential electors); see also 2 U.S.C. § 1
(establishing the same date for the Senate). The
preemption analysis thus turns on whether “the day
for the election” also mandates that all ballots be in
the custody of state officials at the conclusion of the
38a
exact same day. Our judicial role is limited: we cannot
“rewrite the statute that Congress has enacted,” Dodd
v. United States, 545 U.S. 353, 359 (2005), or impose
our “individual policy preferences,” Loper Bright
Enters. v. Raimondo, 603 U.S. 369, 403 (2024).
Instead, 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) (alteration in original)
(quoting Perrin v. United States, 444 U.S. 37, 42
(1979)).
A.
Dictionaries are a useful starting point, as their
“definitions inform the plain meaning of a statute.”
United States v. Radley, 632 F.3d 177, 182–83 (5th
Cir. 2011) (citing United States v. Ferguson, 369 F.3d
847, 851 (5th Cir. 2004) (per curiam)). A review of
dictionaries published around the time of the statute’s
enactment reveals that an “election” referred to the
day that voters made choices for public officers—
nothing more. See, e.g., Election, AN AMERICAN
DICTIONARY OF THE ENGLISH LANGUAGE (1st ed. 1828)
(“The day of a public choice of the officers.”); Election,
BLACK’S LAW DICTIONARY (1st ed. 1891) (“The
selection of one man from among several candidates
. . . .”).
While the panel opinion acknowledges these
definitions, it declares that they are not suitable
because they “make no mention of deadlines or ballot
receipt.” 120 F.4th at 206 n.5. Respectfully, this
sounds like an answer in search of a question. The
date for holding an election is distinct from a deadline
for receiving ballots cast in that election. C.f. Bush v.
Gore, 531 U.S. 98, 116 (2000) (Rehnquist, C.J.,
39a
concurring) (“After the election has taken place, the
canvassing boards receive returns from precincts
. . . .” (emphasis added)). “[T]here is no compelling
reason not to read Elections Clause legislation simply
to mean what it says.” Arizona v. Inter Tribal Council
of Ariz., Inc., 570 U.S. 1, 15 (2013). And if, at the time
of the statute’s enactment, the ordinary meaning of
“election” carried no mandate as to when ballots were
to be received, our inquiry should end.
Instead, the panel resorted to its own flawed
reading of Foster v. Love, 522 U.S. 67 (1997). In
Foster, the Supreme Court invalidated a Louisiana
statute that allowed for its senatorial elections to be
held, and potentially completed, a month before
Election Day. Id. The panel culled a trio of factors
from the decision that purportedly “guide” the
contours of an election: “(1) official action, (2) finality,
and (3) consummation.” 120 F.4th at 207.
But the decision to employ Foster as a vehicle for
analysis is questionable. The Foster court expressly
renounced any intention of “paring the term ‘election’
in [2 U.S.C.] § 7 down to the definitional bone.” 522
U.S. at 72. Yet the panel employs the opinion for that
very purpose, declaring that three factors, selectively
chosen from the opinion’s text, encapsulate an
election’s defining features. What is more, Foster
conceded that its holding did not “turn on any nicety
in isolating precisely what acts must cause to be done
on federal election day (and not before it) to satisfy
the statute.” Id. But again, the panel uses the decision
to support that end—cutting it into various pieces to
determine whether ballot receipt must occur by the
conclusion of Election Day. In my view, it is ill-advised
to employ a decision that characterizes its approach
as “narrow” and simply “enough to resolve” the
40a
dispute at hand, for the very purpose that the opinion
disclaims. Id. at 71–72.
B.
Even assuming that the panel’s trio of factors is
proper, problems remain with its application to ballot
receipt deadlines. The opinion defines the first prong,
“official action,” as “the combined actions of voters
and officials meant to make a final selection of an
officeholder.” 120 F.4th at 207 (quoting Foster, 522
U.S. at 71). There are two logical ways to
contextualize this factor within voting processes. The
first is that the “combined action” consists of election
officials providing the means of suffrage—i.e., setting
up in-person voting stations, offering a ballot drop
box, or providing an absentee ballot—and eligible
voters casting ballots. Under this reading, processing
actions, including ballot receipt, voter validation, and
tabulation, are administrative duties that occur after
the election and finalize its result.1 The second,
alternative reading would circumscribe all of the
above-mentioned activities within a single election.
As the panel opinion acknowledges, this second
reading is disfavored, as it would require election
officials to complete counting and certify an election
by the end of Election Day—a practically impossible
1 The opinion rejects this reading by providing hypotheticals
that it concedes are “obviously absurd”: “[w]hat 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?” 120 F.4th at 207.
To the extent that the hypotheticals can be construed as serious
objections, both examples result in ballots that are cast
(submitted in accordance with state law) but are neither received
nor tabulated by an election official.
41a
task. Id. at 208 (“Of course, it can take additional time
to tabulate the election results.”).
Curiously, the panel advances a third reading:
that among all of the processing duties that election
officials perform after voters have cast ballots, only
ballot receipt must occur by the end of Election Day.
It bases this splicing on the notion that a ballot cannot
be cast unless and until it is received by election
officials. Id. at 207. That is error. Consulting a
dictionary confirms that a “cast” object is not
necessarily received by its intended recipient.
Broadly, the term means “to throw,” and in the
electoral context, it means “to deposit (a voting paper
or ticket).” Cast, OXFORD ENGLISH DICTIONARY (online
ed., 2025). Neither definition expressly conditions the
act of casting on ultimate receipt of the item being
cast.
The use of a term in common parlance can also aid
statutory interpretation. Here, it confirms the
dictionary definition: while casting an object connotes
an expectation that the object is received by its
intended recipient, receipt is neither necessitated nor
guaranteed. Consider this example: if a law clerk tells
me that he spent the weekend casting fishing lines, I
would expect that the lines were “received”—that is,
his hooks landed in the water. “But,” the law clerk
continues, “it was incredibly windy, and my lines were
caught in a nearby tree.” However poor my clerk’s
casting abilities are, his statements are correct from
a vocabulary-based perspective.
A similar principle applies when analyzing the
“cast” term in the context of an election. While the
word “deposit” suggests that a ballot must be placed
in the custody of someone else, that does not compel
42a
the conclusion that the panel insists on: that a ballot
must be “received by state officials” to be considered
cast. 120 F.4th at 204 (emphasis omitted). Instead,
lawmakers in each state exercise their legislative
prerogative, and establish to whom a ballot must be
deposited by the end of Election Day for it to be
eligible for counting once timely received by election
officials. In Mississippi, for example, voters may place
ballots in the custody of the United States Postal
Service or other “common carrier, such as United
Parcel Service or FedEx Corporation.” MISS. CODE
§ 23-15-637(1)(a). And while an absentee voter would
likely expect that their cast ballot is timely received
by the appropriate election official, that may not
always be the result.
Indeed, the Supreme Court has recently
recognized that the casting and receipt of a ballot are
distinct actions. In staying a Wisconsin district court’s
ruling that required election officials to count ballots
that were cast after a primary election day, the Court
noted that “[e]xtending the date by which ballots may
be cast by voters—not just received by the municipal
clerks but cast by voters—for an additional six days
after the scheduled election day fundamentally alters
the nature of the election.” Republican Nat’l Comm. v.
Democratic Nat’l Comm., 589 U.S. 423, 424 (2020)
(per curiam) (emphasis added). The Court’s express
differentiation between the casting and receipt of a
ballot further highlights the panel’s error in insisting
that a ballot can only be cast if it is also received—
and derivatively, that receipt is necessary for any
“official action” requirement to be satisfied.
The panel’s second factor, “finality,” fares no
better. The opinion relies heavily on two conclusions:
(1) a voter’s individual selections are different from
43a
the polity’s aggregate election of a candidate, and
(2) an election cannot be considered “final” until all
eligible ballots are in the custody of state officials. 120
F.4th at 207. The first conclusion is uncontroversial,
particularly considering—as the opinion concedes—
that “count[ing] (or recount[ing]) ballots after
Election Day” is acceptable. Id. at 208. But the second
conclusion—that an election cannot be “final” unless
“the proverbial ballot box is closed,” fails to withstand
scrutiny. Id. at 207.
To start, the statement is not supported by any
caselaw. The only federal case cited in this section
merely addresses whether the Constitution
authorizes the federal government to regulate
political party primaries (the answer is no). Newberry
v. United States, 256 U.S. 232 (1921). And even if
Newberry was topical, the cited portion—that the
“general significance” of an election is the “final choice
of an officer by the duly qualified electors”—says
nothing about when that “final choice” must occur, or
whether the receipt of ballots has anything to do with
that “final choice.” Id. at 250.
Ironically, the other cited case, Maddox v. Board
of State Canvassers, 149 P.2d 112 (Mont. 1944),
supports a conclusion different from the panel’s: that
state statutes govern when each voter has made the
“final choice” that Newberry identifies. The panel
summarized the Montana Supreme Court’s holding
as follows: “the Electors Clause preempted a state law
that allowed receipt of ballots after Election Day.” 120
F.4th at 208. But that description omits a critical
feature: at the time Maddox was decided, Montana’s
laws required that ballots be “delivered to the election
officials and deposited in the ballot box before the
closing of the polls on election day.” 149 P.2d at 115
44a
(emphases added) (citations omitted). The following
paragraph confirms the significance of this important
distinction: “federal and state laws must be read
together, and since the state law provides for ballots
deposited with the election officials, that act must be
completed on the day designated by state and federal
laws.” Id. (emphases added).
Mississippi’s current laws are materially different:
to be counted, an absentee ballot must be deposited,
with a confirming postmark, to a mail carrier “on or
before the date of the election”; and be received by
election officials “no more than five (5) business days
after the election.” MISS. CODE. § 23-15-637(1)(a). And
while the panel opinion identifies a pair of Mississippi
election regulations that, within the tabulation
process, classify a ballot as “final” only after election
officials validate and count that ballot, 120 F.4th at
207–08 (citing 1 MISS. CODE R. 17-2.1, 17-2.3(a)), that
regulatory label does not in practice2—and cannot, as
a matter of principle—invalidate the statute’s
directive allowing for post-Election Day ballot receipt.
After all, a Mississippi agency “may not make rules
and regulations which conflict with, or are contrary
to, the provisions of a statute, particularly the statute
it is administering or which created it.” Miss. Pub.
Serv. Comm’n v. Miss. Power & Light Co., 593 So. 2d
997, 1000 (Miss. 1991) (citation omitted).
The panel’s reliance on the two Mississippi regulations
conflates the selections made by a voter (while casting an
individual ballot) with the processing and tabulation actions
that election officials undertake to finalize an election. And, as
the opinion concedes, ballot processing and counting can occur
after Election Day. 120 F.4th at 208.
2
45a
The panel further justifies its line-drawing of
finality by claiming that “the result is fixed when all
of the ballots are received and the proverbial ballot
box is closed.” 120 F.4th at 207. But this notion of a
“fixed” result is belied by the panel’s artificial
separation of the receipt of a ballot from other
administrative
functions.
As
the
opinion
acknowledges, Mississippi election officials are
required to perform a multi-faceted verification
process to ensure ballot integrity. That process
undoubtedly strikes some number of received ballots
from being counted, and thus undermines the panel’s
conclusion that receipt ensures a fixed result.3
Lastly, in insisting that federal law requires that
ballots be in the custody of an elections official, and
not a designated intermediary, by Election Day’s
conclusion, the panel claims that a sender’s purported
ability “to recall mail” means that “voters can change
their votes after Election Day.” Id. at 208. Even
without considering the practical issues4 with this
3 At a minimum, then, the panel’s conception of a “fixed”
result is no better than an alternative reading: that in
jurisdictions with post-Election Day receipt deadlines, the
results are “fixed” by Election Day because that deadline
establishes a definitive range, with a one-way ratchet, of eligible
ballots.
While recalling a mailed ballot is theoretically possible,
practical considerations render the occurrence incredibly
unlikely. For one, mail recall is not automatically available for
every ballot mailed through the postal service. A voter must
instead have the foresight and means to have a parcel tracking
number attached to their ballot envelope (akin to a shipper
adding a tracking service onto a package), and the means to pay
an additional fee if their package is successfully recalled.
Domestic Mail Manual, § 507.5.1.3 (“Package Intercept is not
4
46a
reasoning, the logic is fatally flawed. Any piece of mail
that is successfully recalled will receive a new
postmark when mailed again, and if that new
postmark bears a post-Election Day date, Mississippi
election officials must reject it. MISS. CODE § 23-15647 (“All such absentee ballots returned to the
registrar after the cutoff time shall be safely kept
unopened” and are ultimately “destroyed.”). And if a
voter fails to resubmit a recalled ballot, the result
remains the same: the election official has neither
received nor tabulated any ballot from that voter. In
no scenario is a voter abusing delivery services to
meaningfully “change their vote after Election Day.”
120 F.4th at 208.
The final prong of the panel’s triad,
“consummation,”
purportedly
evaluates
the
theoretical point at which an election is complete. The
opinion cites to two cases, Voting Integrity Project,
Inc. v. Bomer, 199 F.3d 773 (5th Cir. 2000) and Foster,
522 U.S. 67, for the proposition that “so long as the
State continued to receive ballots, the election was
ongoing and had not been consummated.” 120 F.4th
at 208.
But that framing confuses a derivative act for the
predicate requirement. Both Bomer and Foster
emphasize that the consummation of an election
available for . . . [m]ailpieces that do not contain a tracking
barcode.”); § 507.5.2 (“Customers must pay a nonrefundable perprice fee once the USPS successfully intercepts the package.”).
And for two, it is nearly impossible to meaningfully alter a vote
once it has been marked. What is a voter supposed to do with
their prior selections—apply whiteout? Cross out their prior
marks? Make superseding marks with a different pen, or
perhaps permanent marker? The possibilities may be endless,
but all would likely be futile. !
47a
cannot occur prior to Election Day because doing so
would infringe upon the electorate’s ability to vote on
the day that Congress designated for voting. Bomer,
199 F.3d at 775–76 (affirming the constitutionality of
a Texas early voting law because polls remained “open
on federal election day and most voters cast their
ballots that day”); Foster, 522 U.S. at 74 (noting the
Louisiana Attorney General’s concession that the
state’s voting “system certainly allows for the election
of a candidate in October, as opposed to actually
electing on Federal Election Day”). If the panel was
correct that consummation was strictly linked to
ballot receipt, a state could comply with federal
election laws by only receiving absentee ballots on
Election Day, while also barring in-person voting
itself. That notion, of course, is soundly rejected by
Foster and Bomer.
III.
Though not dispositive, “[h]istorical practice [is]
particularly pertinent when it comes to [interpreting]
the Elections and Electors Clauses.” Moore v. Harper,
600 U.S. 1, 32 (2023). Given that 2 U.S.C. § 7 was
enacted in the 1870s, absentee ballot practices
employed during the Civil War are particularly
illuminative of Congress’s understanding. And the
historical record demonstrates that many states
accommodated wartime voting by counting timelycast ballots that were received after Election Day.
The panel opinion casts Civil War absentee voting
methods as a binary: either local “election officials
brought ballot boxes to the battle-field, where soldiers
cast their ballots,” or soldiers prepared ballots in the
field and gave “them to a proxy for deposit in the
ballot box of the soldier’s home precinct.” 120 F.4th at
48a
209–10. Both methods, according to the panel,
underscore that a soldier only “voted when the vote
was received by election officials”—either by placing
the ballot in a box brought to the battlefield by
election officials, or when a proxy-transported vote
was deposited at a soldier’s county of residence. Id. at
210.
But this summation oversimplifies the historical
record in two material respects. For one, at least three
states allowed Civil War soldiers to vote on Election
Day, with administrative oversight performed not by
local election officials, but by military personnel. 5
After voting concluded, ballots were transported back
to home precincts for counting, and necessarily
arrived after Election Day, given inferior
transportation methods that existed in the 1860s.
These three states counted these ballots upon receipt,
even though they were neither deposited in a box
“brought . . . to the battle-field” by election officials,
nor “deposit[ed] in the ballot box of the soldier’s home
precinct” before Election Day. Id. at 209–10.
For example, until at least 1862, Pennsylvania’s
General Election Law allowed soldiers to “exercise the
right of suffrage at such place as may be appointed by
the commanding officer of the troop or company.”
BENTON, supra, at 189. Each soldier’s selections were
treated “as fully as if [the soldiers] were present at the
5 While some may suggest that these military officers acted
as ex officio election officials, military designees were readily
distinguishable from civilian election officials. As the meritsstage amicus brief submitted by the United States explains,
most states required civilian election officers “to swear oaths to
fairly conduct the election or uphold state oaths.” In-field
military officers lacked such deputization; they were simply
designated as chaperones through their military rank.
49a
usual place of election,” and “their votes were
counted,” even though those ballots necessarily
arrived after Election Day. Id. at 190. In a similar
vein, Nevada required that “[o]n election day the vote
was to be taken under the direction of the
commanding officers,” with words such as
“Constitution yes” or “Constitution no” used to signify
each soldier’s vote. Id. at 171. Once the ballots arrived
in the Silver State—undoubtedly after a days-long
trek across the Great Plains—they were duplicated
for verification purposes, assessed for eligibility, and
then counted. Id. at 171–72.
Rhode Island’s laws were even more explicit: “on
the day of such elections,” a solider was allowed to
“deliver a written or printed ballot with the names of
the persons voted for . . . to the officer commanding
the regiment or company to which he belongs.” Id. at
186–87. Once all soldiers had voted, the commanding
officer was tasked with returning each ballot “to the
Secretary of State within the time prescribed by law
for counting votes in such elections.” Id. at 187
(emphasis added). These three states, in turn,
represent at least a third approach intended to
facilitate Civil War suffrage: soldiers completed their
ballots on Election Day in the field, without the
presence of local election officials, and then those
ballots were transported by proxy—necessarily
arriving after Election Day—to home precincts for
counting.
Rhode Island’s approach also highlights a second
distinction that further undercuts the opinion’s
skewed recollection of Civil War suffrage. Many
states attempted to facilitate voting among soldiers
by allowing battlefield ballots to be counted if they
arrived before a post-Election Day deadline. A quartet
50a
of Confederate states illustrates this principle:
Alabama waited until at least November 26 to count
soldiers’ ballots; North Carolina directed that votes be
counted “twenty days after they were cast in the
field”; Georgia required that soldiers’ votes be counted
“within fifteen days after the election, that is, after
the day on which they were cast”; and Florida
tabulated such ballots on “the twentieth day after the
election.” Id. at 317–18. Among Union states,
Maryland required its canvassing officer, the
Governor, to wait “fifteen days after the election . . .
to allow the returns of the soldiers’ vote to be made.”
Id. at 318. And other northern states generally
understood that “a sufficient period would elapse
between the day of the election, which was the day on
which the soldiers were to vote on the field, and the
counting of the votes of the State by the officers who
were to count them, to enable the votes to reach
them.” Id. The post-Election Day receipt and counting
of these Civil War ballots are consistent with absentee
ballot procedures currently present in twenty-eight
states and the District of Columbia: ballots that are
timely cast by eligible voters are counted if received
within an established time period after Election Day.
The varying approaches that states adopted to
facilitate suffrage during the Civil War separately
encapsulates a “clearly established” principle: “the
policy of Congress for so great a part of our
constitutional life has been, and now is, to leave the
conduct of the election of its members to state laws.”
United States v. Gradwell, 243 U.S. 476, 485 (1917).
As Madison remarked at the Constitutional
Convention, the Elections Clause left “the regulation
of [federal elections], in the first place, to the state
government, as being best acquainted with the
51a
situation of the people.” 3 RECORDS OF THE FEDERAL
CONVENTION OF 1787, at 312 (M. Farrand ed., 1911).
States accordingly hold a “constitutional duty to craft
the rules governing federal elections,” Moore, 600 U.S.
at 29, and are tasked with crafting regulations for a
variety of ancillary tasks, including the “counting of
votes.” Smiley v. Holm, 285 U.S. 355, 366 (1932).
Congress, of course, has the power to preempt a
state’s election regulations through the Elections
Clause. U.S. CONST. art. I, § IV. But when it chooses
to, “it has done so by positive and clear statutes.”
Gradwell, 243 U.S. at 485 (emphases added). We
should refrain from “giv[ing] an unduly broad
interpretation to ambiguous” language and risk
“overextending a federal statute’s pre-emptive reach.”
Inter Tribal, 570 U.S. at 21 (Kennedy, J. concurring
in part and concurring in judgment). And we should
be especially wary of adopting an ambitious—if not
strained—reading of a statute that is also
inconsistent with historical practice at the time of the
law’s enactment.
IV.
“Legislative history” can also help “ascertain the
intent of the legislative authority” that enacted a
statute. Rainbow Gun Club, Inc. v. Denbury Onshore,
L.L.C., 760 F.3d 405, 410 (5th Cir. 2014) (quoting In
re Hammers, 988 F.2d 32, 34 (5th Cir. 1993)).
Fortunately, the Supreme Court has already spoken
as to Congress’s intent when it crafted the statute
that set a uniform day for federal elections. 2 U.S.C.
§ 7 was enacted to address two concerns: “the
distortion of the voting process threatened when the
results of an early federal election in one State can
influence later voting,” and “the burden on citizens
52a
forced to turn out on two different election days to
make final selections of federal officers.” Foster, 522
U.S. at 73. Construing the statute to compel ballot
receipt by the end of Election Day does not redress (or
even implicate) either concern. As one of our sister
circuits has noted, “there is no reason to think that
simply because Congress established a federal
election day it displaced all State regulation of the
times for holding federal elections.” Millsaps v.
Thompson, 259 F.3d 535, 549 (6th Cir. 2001).
Subsequent legislative developments are also
useful in determining whether a statute was intended
to achieve a preemptive effect on state laws. In
particular, “the case for federal pre-emption is
particularly weak where Congress has indicated its
awareness of the operation of state law in a field of
federal interest, and has nonetheless decided to ‘stand
by both concepts and to tolerate whatever tension
there [is] between them.’” Bonito Boats, Inc. v.
Thunder Craft Boats, Inc., 489 U.S. 141, 166–67
(1989) (quoting Silkwood v. Kerr–McGee Corp., 464
U.S. 238, 256 (1984)). And candidly, a legislative
history review illustrates that Congress has not been
merely “aware[]” or “tolera[nt]” of post-Election Day
receipt deadlines. Id. Instead, the body has
accommodated each state’s distinct ballot receipt laws
while crafting federal legislation to improve the
ability for overseas citizens to vote.
In 1986, for example, Congress passed the
Uniformed and Overseas Citizens Absentee Voting
Act (“UOCAVA”), a bill that requires states to provide
eligible overseas voters with absentee ballots. If an
eligible voter fails to timely receive a ballot from the
state they are registered to vote in, UOCAVA directs
the state to accept a substitute ballot, known as the
53a
Federal Write-In Absentee Ballot. The key feature for
this discussion relates to ballot receipt: the statute
requires that states accept and count a Federal WriteIn Absentee Ballot unless a state-issued ballot is
received from the same voter “by the deadline for
receipt of the State absentee ballot under State law.”
52 U.S.C. § 20303(b)(3). Instead of setting Election
Day as a backstop receipt deadline for overriding
ballots, Congress chose to expressly incorporate each
state’s independent ballot receipt deadline within the
statute.
More recently, Congress amended UOCAVA’s
provisions by passing the Military and Overseas
Voter Empowerment Act (“MOVE”). The 2009 law
requires federal and state designees to facilitate and
streamline the delivery of overseas absentee ballots.
Id. §§ 20302(a)(10), 20304(b)(1). Once again,
Congress was intentional in selecting the target date
by which ballots were to be returned to home states:
no later than whatever “date by which an absentee
ballot must be received in order to be counted in the
election.” Id. § 20304(b)(1).
UOCAVA and MOVE are strong examples of a
“long history of congressional tolerance, despite the
federal election day statute, of absentee” voting
procedures and post-Election Day receipt deadlines.
Voting Integrity Project, Inc. v. Keisling, 259 F.3d
1169, 1175 (9th Cir. 2001). Indeed, when presented
with multiple opportunities to disable, or at least
condemn, this “universal, longstanding practice,”
Congress chose instead to incorporate post-Election
Day ballot receipt deadlines into its statutes. It is this
court’s stated policy that we not “read the federal
election day statutes in a manner that would prohibit
such a universal, longstanding practice of which
54a
Congress was obviously well aware.” Bomer, 199 F.3d
at 776. Yet the panel opinion reneges on that
principle, and unabashedly dismisses a panoply of
state laws establishing ballot receipt deadlines.
V.
Two other portions of the panel opinion deserve
scrutiny. First, the opinion suggests that any contrary
conclusion could allow a state to extend its ballot
receipt deadline by “100 days.” 120 F.4th at 215.
Limiting principles—both statutory and practical—
already prevent such an absurd outcome. In
presidential and vice-presential election years, states
must certify election results by December 31. 3 U.S.C.
§ 5(a)(1) (requiring certification “6 days before the
time fixed for the meeting of the electors”); 3 U.S.C.
§ 15(a) (setting January 6 as the meeting date). And
states that delay tabulation for House and Senate
races risk disenfranchising constituents and losing
representation in a new Congress. These reasons are
perhaps why, to my knowledge, no state—in the near
quarter-millennial history of our nation—has risked
the undemocratic gambit that the panel opinion
postulates.6
Second, the opinion intimates that the only
constitutionally-acceptable form of absentee voting is
“the practice . . . that arose during the Civil War,” and
criticizes attempts to expand the benefits of absentee
6 In the 2024 election, for example, the latest state ballot
receipt deadlines were ten days (Alaska and Maryland) and
fourteen days (Illinois) after Election Day. Table 11: Receipt and
Postmark Deadlines for Absentee/Mail Ballots, NAT’L CONF. OF
STATE
LEGISLATURES
(Feb.
22,
2025),
https://www.ncsl.org/elections-and-campaigns/table-11-receiptand-postmark-deadlines-for-absentee-mail-ballots.
55a
voting to common citizens as “late-in-time outliers.”
120 F.4th at 211 (quoting N.Y. State Rifle & Pistol
Ass’n, Inc. v. Bruen, 597 U.S. 1, 70 (2022)). But the
Supreme Court has not required that the BruenRahimi historical analysis be applied to election
litigation—and even if such an exacting standard
applied, the panel’s intimation is “as mistaken as
applying the protections [of the Second Amendment]
only to muskets and sabers.” United States v. Rahimi,
602 U.S. 680, 692 (2024).
Moreover, our role as judges is not to determine
whether these so-called “late-in-time outliers”—
referring to broadened access to absentee voting—are
efficacious or desirable. 120 F.4th at 211. It is
axiomatic that “federal courts are supposed to leave
policy-preference choices to Congress—not invoke
them to rewrite statutes.” Hoyle v. City of Hernando,
No. 23-60451, 2024 WL 4039746, at *5 (5th Cir. Sept.
4, 2024) (Oldham, J., concurring). And “when judges
test their individual notions . . . against an American
tradition that is deep and broad and continuing, it is
not the tradition that is on trial, but the judges.”
Schad v. Arizona, 501 U.S. 624, 650 (1991) (Scalia, J.,
concurring in part and concurring in judgment).
Within the context of election regulations, the
“American tradition” that Justice Scalia spoke to is
clear: “the policy of Congress for so great a part of our
constitutional life has been, and now is, to leave the
conduct of the election of its members to state laws.”
Id.; Gradwell, 243 U.S. at 485. That tradition
delegates to the states the responsibility of
“provid[ing] a complete code for federal elections”—
including the “counting of votes.” Smiley, 285 U.S. at
366. And this responsibility—which “involves
lawmaking in its essential features and most
56a
important aspect,” should be left to our state
legislators, absent clear and express federal language
to the contrary. Id.
*
*
*
The panel opinion holds that ballot receipt laws in
at least twenty-eight states and the District of
Columbia are preempted by federal laws that merely
designate the day on which an election must occur.
The strained statutory interpretation that the opinion
employs runs counter to all the traditional tools of
statutory interpretation—plain meaning, dictionary
definitions, common parlance, historical practice,
congressional intent, and congressional history—that
we deploy on a daily basis. We should have reheard
Wetzel en banc, and I respectfully dissent from this
court’s failure to do so.
57a
STEPHEN A. HIGGINSON, Circuit Judge, dissenting
from the denial of rehearing en banc:
I join in full Judge Graves’s comprehensive
dissenting opinion from our denial of the petition for
full court rehearing. To add further credit for my
assessment that this case deserves rehearing, I write
to acknowledge Attorney Adam Unikowsky’s critique
of our court’s decision. See Adam Unikowsky, The soul
of “election day”, ADAM’S LEGAL NEWSLETTER (Nov. 3,
2024),
https://adamunikowsky.substack.com/p/thesoul-of-election-day.
We benefit from lawyer insight and criticism.
Though we receive amicus curiae briefs less
frequently than the Supreme Court, they provide
primary opportunity for non-party lawyers to give
insight, albeit with stringent requirements. It is rarer
that topflight lawyers,1 like Unikowsky, have time to
offer scholarly critique of a case neither he, nor
Bernstein, was retained to handle.
Chief Justice Roberts recently reminded that
“public engagement with the work of the courts
results in a better-informed polity and a more robust
democracy.” CHIEF JUSTICE JOHN G. ROBERTS, JR.,
2024 YEAR END REPORT ON THE FEDERAL JUDICIARY 4
(2024),
https://www.supremecourt.gov/publicinfo/
year-end/2024year-endreport.pdf. It is for this reason
that the judiciary depends on lawyers, not just as
party advocates, but also for all forms of engagement
1 Unikowsky, in turn, credits Attorney Richard Bernstein’s
analysis for the Society for the Rule of Law. Richard Bernstein,
The Fifth Circuit Was Wrong–Counting Timely-Cast Remote
Votes That Are Received After Election Day is as Old as the
Founding, SOC’Y FOR THE RULE OF L. (Nov. 1, 2024),
https://societyfortheruleoflaw.org/fifth-circuit-wrong/.
58a
with courts. “[I]nformed criticism” of court opinions
from lawyers unaffiliated with the parties is in that
vital tradition. Id. at 5 (quoting CHIEF JUSTICE
WILLIAM H. REHNQUIST, 2004 YEAR END REPORT ON
THE
FEDERAL
JUDICIARY
5
(2004),
https://www.supremecourt.gov/publicinfo/year-end/
2004year-endreport.pdf).
I regret that I have not made Attorney Unikowky’s
critique convincingly to my colleagues. Nevertheless,
remembering
the
Supreme
Court’s
acknowledgements when scholars are instructive,2
this case provides opportunity for me to acknowledge
lawyers like Unikowsky and Bernstein, whose
vigilant criticism of our court’s work product should
help the growth of the law.
2 See, e.g., Feist Pub’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S.
340, 347 (1991) (O’Connor, J.); Harrington v. Purdue Pharma
L. P., 603 U.S. 204, 229 (2024) (Kavanaugh, J., dissenting).
59a
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT
OF MISSISSIPPI
SOUTHERN DIVISION
[Filed July 28, 2024]
REPUBLICAN NATIONAL
COMMITTEE; MISSISSIPPI
REPUBLICAN PARTY; JAMES
PERRY; and MATTHEW LAMB
v.
PLAINTIFFS
CAUSE NO. 1:24cv25-LG-RPM
JUSTIN WETZEL, in his
official capacity as the
clerk and register of the
Circuit Court of Harrison
County, et al.
DEFENDANTS
consolidated with
LIBERTARIAN PARTY OF
MISSISSIPPI
v.
PLAINTIFF
CAUSE NO. 1:24cv37-LG-RPM
JUSTIN WETZEL, in his
official capacity as the
clerk and register of the
Circuit Court of Harrison
County, et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
BEFORE THE COURT in these consolidated
cases is a challenge to a portion of Mississippi’s
60a
absentee-balloting procedures. At issue is Mississippi
Code Ann. § 23-15-637(1)(a) which provides in part for
the counting of absentee ballots postmarked on or
before the date of the election and received by mail no
more than five business days after the election.
Plaintiffs contend that
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.