The soul of "election day"

There isn't one.

On October 25, 2024, the Fifth Circuit held in Republican National Committee v. Wetzel that federal law prohibits states from counting votes that are mailed on or before, but received by state officials after, election day. I respectfully disagree with the Fifth Circuit’s decision. As I see it, the Fifth Circuit’s decision illustrates the horseshoe theory of law—the tendency of the methodologies of very conservative and very progressive judges to converge.

The Tax Day non-paradox

Under Mississippi law, mail ballots are counted if they are “postmarked on or before the date of the election and received by the registrar no more than five (5) business days after the election.” The question in Wetzel is whether, as applied to federal elections, federal law preempts that Mississippi law. Specifically, the question is whether federal law imposes a mandatory requirement that ballots be received by election day, which supersedes the state law authorizing ballots to be counted as long as they are mailed by election day.

In answering that question, it’s easier to analyze the congressional and presidential elections separately. Let’s start with Congress. The Elections Clause, in Article I of the Constitution, provides: “The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” This means that, by default, states prescribe rules governing elections. But Congress also has the authority to prescribe such rules, and if state law and federal law are inconsistent, federal law wins. In the real world, federal law is silent on most matters of election administration, so state law mostly rules. But there are a few issues on which Congress has legislated, and on those issues, federal law controls.

The federal statute at issue is 2 U.S.C. § 7, which says: “The Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election.” Is Mississippi’s statute, which permits ballots to be counted as long as they are mailed by election day, inconsistent with this federal statute?

It is not. The federal statute establishes a particular day as the “day for the election,” but is silent on what a voter must do to meet the “day for the election” deadline. When a voter votes by mail, several things happen: (1) the voter puts the vote in the mail; (2) the mailman delivers the ballot to a state building; (3) the ballot is processed; (4) the ballot is counted; (5) all the votes are tallied; (6) canvassing activities take place; and (7) the final result of the election is certified. (This is an oversimplified account and I’m skipping lots of intermediary steps.)

Which of these things has to happen on the “day for the election”? The federal statute doesn’t say. You can stare at the words “day for the election” all day, and you won’t find the answer. Therefore, the states get to decide.

Moreover, it’s common for laws to provide that: (1) Date X is a deadline to convey something, but (2) you meet that deadline by putting the document in the mail by the deadline. (This is known as the “mailbox rule.”) For example, tax returns are timely if they are mailed by April 15, and a prisoner’s notice of appeal is timely if he puts it in the mail by the deadline. The mailbox rule comes up outside the context of government deadlines, too: in contract law, a person is deemed to have accepted a contract the instant he puts the signed contract into the mailbox, even if the contract doesn’t reach the offeror until later.

Consider the following two statements:

• April 15 is Tax Day.

• A tax return is timely if it is mailed by April 15.

Do those two statements contradict each other? Is uttering those two statements analogous to saying, “John is married to Mary but Mary is not married to John”? Obviously not. The phrase “April 15 is Tax Day” does not say what, precisely, one has to do by Tax Day to comply with the deadline. Federal law fills in this gap by clarifying that if you’ve put your tax return in the mail by Tax Day, you’re good. The rule that a tax return is timely if mailed by Tax Day is perfectly consistent with the concept of “Tax Day.”

So, just as the statements “(1) April 15 is established as Tax Day, and (2) you meet the deadline by mailing your taxes by Tax Day” aren’t some kind of infernal self-contradictory paradox, the statements “(1) November 5 is established as the day for the election, and (2) you meet that deadline by mailing your ballot by the day for the election” also aren’t some kind of infernal self-contradictory paradox. The second statement just explains how you meet the deadline prescribed by the first statement.

The Fifth Circuit’s decision, of which more below, argues that the mailbox rule is irrelevant because “voting is not a contract or tax return.” Agreed, voting is not a contract or tax return. The point is that—as the contract and tax examples illustrate—the mailbox rule is entirely consistent with the concept of a deadline. It’s simply a rule governing how you meet a deadline.

That wraps up the analysis for congressional elections, so let’s turn to presidential elections. By default, state law governs the administration of presidential elections: the Electors Clause, in Article II of the Constitution, provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” calculated in a particular way. But Article II further provides that “the Congress may determine the Time of chusing the Electors.” Exercising that authority, Congress enacted 3 U.S.C. § 1, which provides: “The electors of President and Vice President shall be appointed, in each State, on election day, in accordance with the laws of the State enacted prior to election day.” The question: does Mississippi’s statute conflict with that federal statute?

Well, as a first cut, the federal statute can’t possibly mean that the electors are literally appointed on “election day.” The federal statute isn’t saying that, at 11:59 PM, even if the vote-counters are halfway through the count, state officials have to torch the uncounted ballots and hastily appoint electors corresponding to whichever presidential candidate happens to be in the lead. Inevitably, it will take election officials a few days or weeks to count up all the votes and figure out who won.

But if that’s the case, then what, precisely, has to happen “on election day”? Is it the voter-mailman handoff? The mailman-mailroom handoff? The mailroom-processor handoff? The opening of the envelope? The counting of the ballot? The statute is silent on this topic. It just uses the words, “on election day.”

When the statute is silent, the state gets to decide. Here, Mississippi has decided that it’s the voter-mailman handoff, which is a ubiquitous way of determining whether a person meets a deadline. There’s no contradiction between federal and state law.

It’s obviously science fiction.

The Fifth Circuit concludes otherwise. Let’s take a look at its reasoning.

The Fifth Circuit first quotes this sentence from Foster v. Love, 522 U.S. 67 (1997): “When the federal statutes speak of ‘the election’ of a Senator or Representative, they plainly refer to the combined actions of voters and officials meant to make a final selection of an officeholder.”

I have no quarrel with this general statement, but it doesn’t shed any light on the question presented. Foster held that Louisiana’s open-primary system, under which candidates could be elected to Congress a month before election day, conflicted with the federal statute requiring the election to occur on election day. Foster has nothing to do with mail ballots or the timing of receipt of ballots. Indeed, Foster has nothing to do with compliance with the Election Day deadline: it instead addressed what states could do before Election Day.

The Fifth Circuit then offers this analysis:

The State’s problem is that it thinks a ballot can be “cast” before it is received. What if a State changes its law to allow voters to mark their ballots and place them in a drawer? Or what if a State allowed a voter to mark a ballot and then post a picture on social media? The hypotheticals are obviously absurd. But it should be equally obvious that a ballot is “cast” when the State takes custody of it.

This is roughly like the following reasoning:

• Is Star Wars a fantasy movie or a science fiction movie?

  • It is obviously absurd to say that Star Wars is a documentary.

  • It is obviously absurd to say that Star Wars is a musical.

  • Therefore, it is equally obvious that Star Wars is a fantasy movie.

The fact that two straw men propositions are wrong does not mean that the court’s view is “obvious.” It’s obvious that putting an image of a ballot on Facebook and stuffing the ballot into a drawer isn’t “casting” a ballot. A ballot can’t be counted unless it’s sent to the government. However, this does not resolve the question whether timeliness is governed by the voter-mailman transfer or the mailman-mailroom transfer.

Also, to me anyway, it sounds more natural to say “the ballot is cast when the vote is put in the mail” than “the ballot is cast when the mailman delivers the ballot to the mailroom.” “Casting” a ballot is something done by the voter, not the mailman, so it’s natural to say that a voter “casts” a ballot when the voter gives it to the government—i.e., the postal service—rather than when one government employee gives the ballot to a different government employee.

Next, the Fifth Circuit offers the following quotation from Newberry v. United States, 256 U.S. 232 (1921): “the word [election] now has the same general significance as it did when the Constitution came into existence—final choice of an officer by the duly qualified electors.” But Newberry addressed the unrelated topic of congressional authority to regulate primary elections. The quoted statement was describing the difference between an election and a primary. It doesn’t shed light on the cast-versus-received issue.

Based on this 103-year-old dictum, the Fifth Circuit declares: “it makes no sense to say the electorate as a whole has made an election and finally chosen the winner before all voters’ selections are received.” Well, I agree it doesn’t make sense to say that elections officials have “finally chosen the winner before all voters’ selections are received,” but elections officials do not ever “finally choose a winner” on election day. The votes have to be counted and canvassed. The court acknowledges this point but says that “[e]ven if the ballots have not been counted, the result is fixed when all of the ballots are received and the proverbial ballot box is closed.” I don’t get it. Why not say that “the result is fixed” when the ballots are put in the mail, as opposed to sitting in a mailbag in the basement of a government building?

Anyway, the federal statutes at issue do not say that elections officials must “finally choose a winner” on election day, that “the result is fixed” on election day, or any of the other verbal formulations that appear in the opinion. They just say “election day.”

The court cites a Mississippi regulation stating that a vote is “final” once it is “marked accepted.” Therefore, the argument goes, because a vote has to be “final” by election day, it has to be “marked accepted” by election day. The significance of this Mississippi regulation eludes me. A Mississippi regulation that uses the word “final” does not resolve whether a Mississippi statute conflicts with a federal statute. I am also unmoved by the court’s citation of a Montana Supreme Court decision from 1944 which largely turned on state law.

The court suggests that it might be possible after election day for voters to recall mail, citing a provision of the “Domestic Mail Manual,” a document which I have been blessed not to have encountered until this case. I will leave it to the subject-matter experts as to whether it is even theoretically possible to recall a mail ballot after if it is mailed. Anyway, there’s no record that this has ever happened or that anyone has even tried. Even if someone did, it’s not a basis to put all mail ballots received after election day into the shredder.

The court cites language from Foster stating that an election “may not be consummated prior to federal election day,” and distinguishes prior case law authorizing early voting on the ground that “so long as the State continued to receive ballots, the election was ongoing and had not been consummated.” The court then states: “Thus, the election is consummated when the last ballot is received and the ballot box is closed.” I don’t understand the “Thus.” How does the proposition “in-person voting before election day is OK” imply the proposition “ballots cast before election day, but received after election day, must be discarded?”

Musty caverns of legislative history

“History,” the Fifth Circuit states, “confirms that ‘election’ includes both ballot casting and ballot receipt.” That is not the case.

The court theorizes that states have historically required ballots to be received by election day, which implies that federal law also imposes this requirement. I’m skeptical of this inference. If the court’s premise is correct, and states did historically require ballots to be received by election day, that wouldn’t imply that states interpreted federal law to mandate that outcome—they may have just felt that such statutes were a good idea.

In fact, however, the premise is wrong. There are many historical examples of states counting votes as long as they were cast by election day, even if they were received by state officials thereafter.

For example, in most states, Civil War soldiers were permitted to cast votes from the battlefield at any time up until election day. State laws contemplated that those ballots might be received by elections officials after election day: for instance, a Maryland law required the governor to “wait for fifteen days” to “allow the returns of the soldiers’ vote.” This seems to rebut the court’s suggestion that the phrase “election day” requires ballots to be received by election day.

To overcome this problem, the court offers the creative solution of defining the persons to whom Civil War soldiers handed their ballots as “elections officials.” I’m not sure that’s historically correct: the government’s brief cites Civil War-era laws in which soldiers were directed to hand their ballots to their commanding officers, not “elections officials.” Moreover, the practical reality was that it might take a long time for those votes to wind their way back to the actual elections officials in the soldiers’ home states who were responsible for counting the ballots. I am skeptical that anyone at the time thought it relevant whether the person physically collecting the ballot on the battlefield could be deemed a “state elections official.”

Later, the practice of counting ballots that were mailed before but received after election day became fairly common. As far back as the 1920s, California and Kansas were already counting such ballots. By the 1940s, eight states—California, Kansas, Maryland, Missouri, Nebraska, Pennsylvania, Rhode Island, and Washington—counted late-received ballots, in some cases for servicemembers and in some cases also by civilians.

The court doesn’t address these statutes. Instead it says this:

By 1938, 42 States permitted some form of absentee voting. Paul G. Steinbicker, Absentee Voting in the United States, 32 Am. Pol. Sci. Rev. 898, 898–99 (1938). But it was almost impossible to count a ballot received after Election Day. All but one of the 42 absentee voting States also had time limits for ballot receipt, with the “usual requirement” of Election Day. Id. at 905–06.

The court’s statement that “it was almost impossible to count a ballot received after Election Day” is not supported by any authority and is incorrect. Although it is true that “[a]ll but one of the 42 absentee voting States also had time limits for ballot receipt,” Mississippi also has a time limit for ballot receipt—five days after the election. The question isn’t whether time limits exist for ballot receipt, it’s whether Election Day is the limit. I took the liberty of pulling the 1938 article that is cited in this discussion, and it does not support the proposition that “it was almost impossible to count a ballot received after Election Day.” Here’s the full quotation from that article:

It should also be noted that all the forty-one states concerned have time limits within which the ballot must be received in order to be counted.  These limits range from six days before to six days after the date of election.  The usual requirement, however, is that the ballot be received on or before the day of election.

Then, a few lines down, there’s a footnote stating that in “those states where the time limit extends beyond the day of election,” “the absentee votes are counted centrally and added to the totals already published for the respective precincts.” There’s no indication that counting those ballots would be “almost impossible.” 

After World War II, state law ebbed and flowed on this issue. The court states that “by 1977, only two of the 48 States permitting absentee voting counted ballots received after Election Day.” The document cited in support of this proposition appears in a stalactite-filled legislative history cavern, specifically a citation-free appendix to a witness’s statement at a 47-year-old congressional hearing. Even assuming the document is accurate, it would confirm that legislation has continuously remained on the books for a century permitting late-received ballots to be counted, at least in some states.

Today, such statutes are common—either 18 or 29 states, depending on how you count, accept ballots that are mailed before, but received after, election day. The court tries to frame these statutes as newfangled innovations, but they’re not very different from the statutes that California and Kansas enacted 100 years ago. One should be skeptical of judges discovering new interpretations of federal law that would imply that state statutes have been illegal for the last century.

Finally, I heartily endorse this well-written analysis by Richard Bernstein. His thesis is that under the Constitution and federal law dating back to 1792, presidential electors meet their deadline as long as they put their vote in the mail by the deadline, even if the votes reach Washington, DC thereafter. This, he explains, is inconsistent with the Fifth Circuit’s view that an “election” is synonymous with the receipt of votes. The Fifth Circuit didn’t address this point (I’m not sure if the parties raised it), but I find it persuasive.

Harmony

Another point in Mississippi’s favor is that other, more recently-enacted federal statutes conflict with the Fifth Circuit’s interpretation of “election day.” For example, the Military and Overseas Voter Empowerment Act requires states to accept overseas servicemembers’ ballots by the “date by which an absentee ballot must be received in order to be counted in the election”—language that is hard to reconcile with a uniform federal requirement that ballots be received by election day. As another example, the Help America Vote Act in some cases requires states to issue provisional ballots that will not be verified until after election day. That statute is irreconcilable with the Fifth Circuit’s view that the election is “consummated” on election day “because officials know there are X ballots to count, and they know there are X ballots to count because the proverbial ballot box is closed.”

Why should we care about these more recently-enacted federal statutes? Well, I’ll include a block-quote from a Supreme Court case:

When confronted with two Acts of Congress allegedly touching on the same topic, this Court is not at liberty to pick and choose among congressional enactments and must instead strive to give effect to both. A party seeking to suggest that two statutes cannot be harmonized, and that one displaces the other, bears the heavy burden of showing a clearly expressed congressional intention that such a result should follow. The intention must be clear and manifest. And in approaching a claimed conflict, we come armed with the strong presumption that repeals by implication are disfavored and that Congress will specifically address preexisting law when it wishes to suspend its normal operations in a later statute.

This principle supports upholding Mississippi’s statute. We must choose between these two propositions:

1. The recent federal statutes are in harmony with the pre-existing laws referring to “election day.” There was no pre-existing requirement that ballots be received by election day, so the new statutes complement—rather than contradict—pre-existing law.

2. The recent federal statutes aren’t in harmony with the pre-existing laws referring to “election day.” There was a pre-existing requirement that ballots be received by election day, so the new statutes contradict that pre-existing requirement.

Harmony is better than dissonance, so we should choose proposition #1—there was no pre-existing requirement that ballots be received by election day.

The Fifth Circuit includes that same block-quote in its opinion but nonetheless concludes that the block-quote supports its interpretation of “election day.” How?

The court begins its analysis by assuming the conclusion that there’s a pre-existing federal rule that ballots must be received by election day. Treating that assumption as a fixed point, the court states that the two options are: (1) the recent federal statutes are a narrow exception to this pre-existing rule, and (2) the recent federal statutes are a broad exception to this pre-existing rule. And, having set up the options this way, the court concludes #1 is preferable to #2:

The United States as amicus cannot come close to showing that HAVA displaces or impliedly repeals the longstanding general rule that the federal Election Day is the singular day on which the ballot box closes. Rather, the best way to harmonize HAVA with the other statutes governing the federal Election Day is that the former is a narrow exception that authorizes States to receive a certain small number of provisional ballots after Election Day from potentially unqualified voters.

I will leave the task of determining the flaw in this logic as an exercise for the reader.

The horseshoe is back

Last year, I wrote a post comparing a Fifth Circuit decision to the types of decisions we used to see from the old Ninth Circuit. The Fifth Circuit is very conservative and the old Ninth Circuit was very progressive, but their methodologies converged.

This case is another example of the same phenomenon. The Fifth Circuit gazed deep into the soul of the phrase “election day” and located, in its penumbras and emanations, a heretofore unnoticed requirement that ballots must be received by election day. The old Ninth Circuit specialized in massaging federal statutes until these sorts of unexpected interpretations popped out. That court was a strong believer in the principle that federal courts should superintend institutions traditionally run by the states, and would routinely announce creative interpretations of federal law as a means of getting there. Indeed, it is easy to imagine Judge Reinhardt writing an opinion saying that “election day” requires all states to accept ballots that are cast by election day, even if they’re received thereafter. Judge Reinhardt would have offered an encomium to the noble tradition of the mailbox rule, added some heartfelt words about how the wicked Postal Service causes voter disenfranchisement, and therefore concluded that “election day” simply means that votes cast by election day but received thereafter must be accepted in all 50 states.

I was not fond of that methodology then, and I am not fond of it now. “Election day” does not have a soul. If Mississippi wants to accept ballots that arrive after election day, that is up to Mississippi.