Justice Department defends state laws that allow counting ballots five days past Election Day

The Justice Department told a federal appeals court this week that state laws counting mail-in ballots days after Election Day do not run afoul of the Constitution or federal law.

The Justice Department filed a brief in support of Mississippi officials in defending the state’s law that allows absentee ballots to be counted five days after Election Day so long as they were postmarked by Election Day.

Kristen Clarke, an assistant attorney general at the Justice Department, said Tuesday in the filing that states have been able to count ballots after Election Day since the Civil War.

“Counting ballots after Election Day that were mailed by Election Day fully complies with the Federal Election Day Statutes,” the brief reads. “States already must perform many tasks after Election Day to complete the legal process of holding an election, and state officials have accepted timely-cast ballots that arrive after Election Day at least since the Civil War. Congress’s longtime tolerance for post-Election-Day ballot receipt deadlines, and its purposes in enacting the Federal Election Day Statutes, confirm that such deadlines do not violate federal law.”

The Republican National Committee sued Mississippi officials in January over the mail-in ballot law.

The organization asked for the state law to be enjoined, and argued that Congress set one federal Election Day.

“Mississippi contravenes those federal laws by counting mail-in ballots that are received up to five business days after Election Day,” the original complaint read.

“Mississippi effectively extends Mississippi’s federal election past the Election Day established by Congress. The result of Mississippi’s violation of federal law is that timely, valid ballots are diluted by untimely, invalid ballots, which violates the rights of candidates, campaigns, and voters under federal law,” read the complaint, filed Jan. 26, before the U.S. District Court for the Southern District of Mississippi.

The district court granted the state officials’ motion for summary judgment, and the RNC appealed to the 5th U.S. Circuit Court of Appeals in New Orleans.

Oral arguments are scheduled for Sept. 24 at 3 p.m.