The conservative 5th U.S. Circuit Court of Appeals on has ruled that it would not change its prior decree that Mississippi cannot count mail-in absentee ballots that arrive after Election Day.
The order means that Mississippi’s law allowing election workers to process mail-in ballots for up to five business days after the election will be suspended for all federal elections.
The ruling does not impact state or local races, including Mississippi’s upcoming municipal elections. Mississippi’s next federal election will be the 2026 midterm, where all four of Mississippi’s U.S. House members are up for reelection, as well as U.S. Sen. Cindy Hyde-Smith.
The recent order affirms an October ruling from a three-judge court that sided with the Republican National Committee and the Libertarian Party of Mississippi, who sued Secretary of State Michael Watson’s office because he administers the state’s elections.
The order stated that Judges Jennifer Elrod, Edith Jones, Jerry Smith, Priscilla Richman, Catharina Haynes, Don Willet, James Ho, Stuart Duncan, Kurt Engelhardt and Andrew Oldham voted for denying the rehearing.
Judges Carl Stewart, James Graves, Stephen Higginson, Dana Douglas and Carrillo Ramirez dissented with the majority and voted in favor of a rehearing. Judges Leslie Southwick and Cory Wilson did not participate in the rehearing consideration.
Judge Oldham, writing for the majority, said the law that the Legislature enacted in 2020 to allow election workers to count mail-in ballots that arrived up to five days after the election conflicts with federal law because Congress had not explicitly granted states the authority to process ballots after Election Day.
“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,” Oldham wrote. “The panel held no.”
It’s unclear if Secretary Watson’s office will appeal the ruling to the U.S. Supreme Court. Both Watson and Attorney General Lynn Fitch’s office told Mississippi Today they are reviewing the court’s decision.
In a dissent, Judge Graves, a former Mississippi Supreme Court judge, wrote that the overwhelming majority of existing case law grants states the ability to regulate the finite details 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,” Graves wrote.
The ruling also comes during the dwindling days of the 2025 legislative session, where lawmakers could try to address the issue. If legislators pass a measure that removes the five-day timeframe, the litigation would be moot.
Senate Elections Chairman Jeremy England said he doubts the Legislature will address the issue this session, meaning the only way for the state to address the ruling is to appeal to the U.S. Supreme Court.
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