Republicans are challenging extended mail-in ballot deadlines in at least two states in a legal maneuver that could have widespread consequences for mail-in voting ahead of November’s presidential election.
A lawsuit filed last week in Mississippi follows a similar lawsuit last year in North Dakota, both of which brought heavily Republican states before conservative federal courts. Democratic and voting rights groups are concerned about the potential impact beyond these two states if a judge rules that deadlines for receiving mail-in ballots extending after Election Day, Nov. 5, violate federal law.
They say it’s possible that such a decision would lead to a nationwide injunction similar to one last year, when a Texas judge temporarily suspended the Food and Drug Administration’s approval of the abortion pill mifepristone.
“This effort threatens to disenfranchise Mississippi voters, but we don’t want this to become a precedent for other states,” said Abhi Rahman, communications director for the Democratic Legislative Campaign Committee, in response to the latest lawsuit.
Mississippi and North Dakota are among several states that accept late-arriving ballots, as long as the ballots are postmarked on or before Election Day, according to the National Conference of State Legislatures. This also includes political swing states such as Nevada. Some states, including Colorado, Oregon and Utah, rely heavily on voting by mail.
Former President Donald Trump has long spoken out against the use of mail-in voting, especially when many states expanded its use during the COVID-19 pandemic in 2020, when the Republican lost his re-election bid to Democrat Joe Biden. Trump has falsely claimed that changing voting numbers after Election Day are an indication of widespread fraud. In the wake of his loss, several Republican-controlled states took steps to tighten rules around mail-in voting.
The Republican National Committee, the Republican Party of Mississippi, a member of the state’s Republican Executive Committee and an elections commissioner in one county filed a federal lawsuit Friday against Secretary of State Michael Watson and six local election officials.
The lawsuit challenges a Mississippi law that says absentee ballots will be counted in presidential elections if they are postmarked before Election Day and received within five days. It states that Mississippi improperly extends federal elections beyond the election date set by Congress and that as a result, “timely, valid ballots are diluted by early, invalid ballots.”
“Federal law is very clear: Election Day is the Tuesday after the first Monday in November,” RNC Chairwoman Ronna McDaniel said in a statement announcing the lawsuit. “However, some states accept and count ballots days and days after Election Day, and we believe this practice is wrong.”
RNC spokesman Gates McGavick said the group hopes for a ruling before the presidential election that deadlines for receiving ballots after Election Day violate federal law.
“This case could have major ramifications in future elections — not just in Mississippi but across the country,” he said.
The Democratic National Committee said it is closely monitoring the cases and will fight any attempt to disenfranchise voters.
“Democrats will always stand with voters against unlawful attacks on Americans’ fundamental right to have their voices heard at the ballot box,” DNC deputy press secretary Nina Raneses said in a statement.
Democratic state Rep. Bryant Clark called the Mississippi lawsuit “another attempt to suppress the vote and block the votes of a certain segment of the population.” He said the lawsuit could also lead to similar efforts across the country.
Thessalia Merivaki, a political science professor at Mississippi State University, said the state’s vote-by-mail process is already difficult to navigate and that eliminating the five-day period would “unfairly punish” voters.
In North Dakota, a similar federal lawsuit was filed against the state’s elections director by the conservative Public Interest Legal Foundation on behalf of a county auditor, Mark Splonskowski, who cited what he said was a conflict between state and federal law. It is expected that a court will soon decide whether he has the legal right to file the lawsuit.
Foundation spokesperson Lauren Bowman said that while the lawsuit concerns North Dakota law, a ruling finding that extended voting deadlines violate federal law would impact other states with similar policies.
State Elections Director Erika White has requested that the case be dismissed. Her attorneys characterized the county auditor’s lawsuit as “an attempt to overturn long-standing North Dakota law and rewrite it in his own favor.” Attorneys from the U.S. Department of Justice’s Civil Rights Division filed a statement of interest in the case, defending existing state law. They said it complied with federal law and ensured military and overseas ballots would be counted.
North Dakota Republican Secretary of State Michael Howe declined to comment, citing ongoing litigation.
Republican Sen. Kristin Roers said the lawsuit could have unintended consequences, such as for military voters, and would effectively punish voters who live in areas with slow postal service.
“I don’t see this being a major, glaring problem in our election system,” she said.
Richard L. Hasen, a law professor at the University of California and an election law expert in Los Angeles, criticized the legal basis of the lawsuits. In the Mississippi case, he said the RNC appears to be trying to gain a political advantage because it “believes late-arriving ballots are more likely to favor Democrats.”
He noted that the 5th U.S. Circuit Court of Appeals, which includes Mississippi, has historically been quite conservative “and does not protect voting rights.”
“It would be a stretch if a challenge to the Mississippi law led to a national injunction against it,” he said. “But it is possible.”
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Fernando reported from Chicago, Pettus from Jackson, Mississippi, and Dura from Bismarck, North Dakota.
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