Amicus Brief in Defense of the Mississippi Absentee Ballot Laws

WASHINGTON – The Society for the Rule of Law Institute has filed an amicus brief supporting Mississippi Secretary of State Michael Watson in a case brought by the Republican National Committee challenging Mississippi’s absentee ballot receipt law. The brief argues that federal election statutes do not pre-empt state laws governing when election officials may receive and count mail-in ballots. “What the federal election day statutes require is that voters submit their choices by election day. Mailing by a voter satisfies this.” (Brief of Amicus Curiae of the Society for the Rule of Law Institute in Support of Petitioner at 4). While federal law sets when voters must cast their votes, it does not regulate the manner in which those votes are received.

READ: Amicus Brief in defense of Mississippi’s Secretary of State and county election officials

The Republican National Committee seeks to invalidate a Mississippi statute that permits absentee ballots mailed by Election Day to be received and counted after Election Day. The amicus brief contends that both the Constitution and federal election laws require only that voters themselves transmit their ballots by Election Day- not that election officials receive them by that date. “An election is choosing and choosing consummates on election day. Here, the people choose—not states or officials.” (Id. at 3–4). Drawing on constitutional text, founding-era practice, and federal statutes, the brief argues that an election is consummated when voters choose candidates or electors, not when ballots are received by officials. The brief explains that under the Constitution, an election is defined by voter action, not post-election administration: “An election is choosing and choosing consummates on election day. Here, the people choose—not states or officials.”  (Id. at 3).

The brief emphasizes that state legislatures retain authority to regulate the manner of elections, including mail-in ballot receipt deadlines. “A state statutory deadline for when an election official receives a ballot mailed by election day is one of the permissible ‘manner’ deadlines that varies by state and governs the counting and announcing by election officials.” (Id. at 3–4) It warns that judicial interference in these policy judgments would undermine the separation of powers and federalism.  The federal courts should not arrogate to themselves the legislative policy judgment whether mail-in voters must send their choices sufficiently before election day so that their ballots are received by election day by an election official. 

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