The Republican National Committee will appeal a recent ruling from U.S. District Judge Louis Guirola Jr. determining that Mississippi’s practice of counting mail-in absentee ballots received up to five days after Election Day is legal. 

The appeal, which has not yet been filed, will go to the New Orleans-based 5th Circuit Court of Appeals, one of the most conservative appellate courts in the nation. 

Gineen Bresso, the election integrity director for the RNC and President Donald Trump’s campaign, told Mississippi Today in a statement that the organization is “confident the 5th Circuit will properly apply federal law.” 

“The election should end on Election Day — that’s the law, and voters deserve fair and accurate results on November 5th,” Bresso said. “Counting ballots that come in after Election Day in Mississippi and other states threatens election security and undermines transparency for voters.”

The Mississippi statute in question is a 2020 state law passed by the Legislature amid the COVID-19 pandemic that allows local election workers to process mail-in absentee ballots for up to five days after an election. The law permits workers to count only the mail-in votes if the ballots were postmarked by the election date. 

The state and national Republican parties, a Harrison County election commissioner and the state Libertarian Party were the plaintiffs in the litigation and argued that Guirola should strike Mississippi’s five-day window because only Congress gets to determine regulations for federal elections. 

Republican Secretary of State Michael Watson is the named defendant in the suit because he is the administrator of Mississippi’s elections – not because he necessarily supports the policy. However, lawyers from Republican Attorney General Lynn Fitch’s office have defended the state law in federal court. 

One of the main points of disagreement between the parties is what is the legal definition of Election Day, which will likely be the central question for the Fifth Circuit to answer.

The appellate court has not ruled on whether ballots received after an Election Day may be counted, but it previously determined in a 2000 case that a Texas early voting statute did not conflict with federal law. 

The plaintiffs argue Election Day is the literal first Tuesday in November and vote-processing after that date runs afoul of federal law. State officials responded that the federal statutes only require that a vote be cast, not received, on or before Election Day.

Guirola ruled that no “final selection,” or voting occurs under Mississippi’s five-day window for processing absentee ballots — only election officials counting the votes. 

“All that occurs after election day is the delivery and counting of ballots cast on or before election day,” Guirola wrote. 

A federal district judge in Nevada recently dismissed a similar lawsuit in Nevada, rejecting the GOP’s claims that counting absentee ballots postmarked by Election Day but received days later was unconstitutional.

Other federal suits brought by the RNC alleging the same arguments against states with similar post-Election Day receipt deadlines for absentee ballots remain pending.

Mississippi is one of several states that allow mailed ballots to be counted if they are postmarked by Election Day, according to the National Conference of State Legislatures. 

A quick, clear resolution before November’s presidential and congressional election would be vital. The appellate process is lengthy and time-consuming, and different rulings from the district and appellate courts could lead to voter confusion. 

Mississippians can request an absentee ballot application starting September 6, and the earliest day they can vote by absentee is September 23, according to the secretary of state’s elections calendar.

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