This may not be the biggest news of the weekend, but it could have more long-term significance than most of the others. In a surprise ruling, a unanimous panel from the Fifth Circuit ruled against the state of Mississippi and invalidated a law allowing ballots to take up to five days after an election to be received and counted, at least in elections involving federal office. 

The Constitution sets an Election Day, Judge Andrew Oldman wrote, and "Day" means what it says:

The ruling could have sweeping implications for the way many states have administered elections for years, but it’s unclear if the decision — made by three Trump-appointed judges on the New Orleans-based 5th Circuit Court of Appeals — will apply on Nov. 5 or only in future elections. Likely appeals could also slow the impact. Still, the effect could be enormous if other courts uphold its rationale that long-standing federal law requires all ballots to be received by Election Day.

Recognizing the significance of its decision, the panel also left it up to a lower-court judge — who initially sided with Mississippi — to determine when the ruling should take effect. The panel underscored the longstanding legal principle that courts should avoid changing election policies on the eve of the vote.

For now, the circuit court’s ruling only applies to Louisiana, Texas and Mississippi — a list that does not include any core presidential battlegrounds but includes a key Senate race. It also tees the issue up for the Supreme Court, where a similar ruling would have a far more dramatic impact.

It's almost certain not to be applied in this election, but even if it were, it seems doubtful that it would make a difference, even in the Senate race. Politico probably refers to the Texas election in that reference, where Colin Allred is running a bit closer to incumbent Ted Cruz than one might have expected. The RCP aggregate has Cruz up 4.2 points as of this morning, but a late-breaking outlier from Emerson has it within one point, 48/47, the only poll in this entire cycle that has the race within the margin of error. Other than military ballots from overseas postings, however, the deadline for mail-in ballots to be received is still Election Day in Texas. 

We'll get back to the military-ballot issue in a moment. The constitutional principle of setting one day to determine elections shows an intent to ensure a uniform count, Oldman ruled for the unanimous panel. On top of the Electors Clause, Oldman writes, Congress intervened twice to ensure fixed election dates -- once for House elections in 1845, and in 1872 for presidential elections:

Two constitutional provisions are relevant to this case. First, the Electors Clause provides: “The Congress may determine the Time of chusing the Electors” for President. U.S. Const. art. II, § 1, cl. 4. Pursuant to the Electors Clause, the Second Congress mandated that States appoint presidential electors within a 34-day period “preceding the first Wednesday in December in every fourth year.” Act of Mar. 1, 1792, ch. 8, § 1, 1 Stat. 239. Some States responded by adopting multi-day voting periods—but this caused election fraud, delay, and other problems. See, e.g., Cong. Globe, 28th Cong. 2d Sess. 14–15, 29 (1844). So Congress intervened in 1845, fixing a “uniform time” for appointing presidential electors on the Tuesday after the first Monday in November. Act of Jan. 23, 1845, ch. 1, 5 Stat. 721 (to be codified at 3 U.S.C. § 1). 

The second relevant constitutional provision is the Elections Clause. It 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.” U.S. Const. art. I, § 4, cl. 1. The Elections Clause imposes a “duty” upon States to hold elections for federal officers. Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 8 (2013). It also vests “power” in Congress to “alter those [state] regulations or supplant them altogether.” Ibid. In the early Republic, congressional elections occurred at varying times, providing some States with an “undue advantage” of “indicating to the country the first sentiment on great political questions.” Cong. Globe, 42d Cong., 2d. Sess., 141, 116 (1871). And the establishment of a uniform day for presidential elections resulted in many States having two separate days for federal elections. Id. at 141. As a result, Congress scheduled all House elections to occur on the presidential election day. Act of Feb. 2, 1872, ch. 11, § 3, 17 Stat. 28 (to be codified at 2 U.S.C. § 7).

Why just the House and President? Both of these took place before the adoption of the 17th Amendment, which required popular elections for the Senate. State legislatures chose senators in those days (for the most part), so Election Day was immaterial. Oldman uses a footnote to point out that Congress acted immediately on adoption of the 17th Amendment in 1914 to pass a law that ensured senatorial elections hewed to the same principle of a single fixed date for receipt and counting of ballots. 

So we have ample constitutional and statutory language confirming the intent of having a singular date by which ballots must not just be cast but received in order to be valid. Mississippi and other states adopted emergency deadlines past that date during the pandemic, but some -- including Mississippi -- have tried to keep those extensions in place. That, however, creates the kind of unreliability that both the Constitution and the relevant federal statutes have specifically tried to prevent, as Oldman says in his conclusion:

As Justice Kavanaugh recently emphasized: “To state the obvious, a State cannot conduct an election without deadlines . . . A deadline is not unconstitutional merely because of voters’ own failures to take timely steps to ensure their franchise.” Democratic Nat’l Comm. v. Wis. State Legislature, 141 S. Ct. 28, 33 (2020) (Mem.) (Kavanaugh, J., concurring in denial of application to vacate stay) (quotation omitted); see also Burdick v. Takushi, 504 U.S. 428, 438 (1992) (“Reasonable regulation of elections . . . does require [voters] to act in a timely fashion if they wish to express their views in the voting booth.” (emphasis in original)). Federal law requires voters to take timely steps to vote by Election Day. And federal law does not permit the State of Mississippi to extend the period for voting by one day, five days, or 100 days. The State’s contrary law is preempted.

In other words, if you want your ballot to count, make sure it gets delivered by Election Day. 

So let's return to the issue of military mail-in ballots, where distance plays as much of a role as time. Oldman didn't seem terribly moved by the argument that they require a special exemption. The history of field voting demonstrated an ability to enforce an Election Day deadline for receipt of ballots, even from soldiers stationed far from home, he reminds readers in his ruling, even during wartime:

Early postwar iterations of absentee voting universally required receipt by Election Day. After the Civil War ended, most States eliminated field voting. See id. at 314–15 (cataloging expiration of wartime voting measures). By the time of World War I, however, many States had adopted a variety of absentee voting laws. Some states limited absentee voting to soldiers and further limited it to only wartime elections. P. Orman Ray, Military Absent Voting Laws, 12 Am. Pol. Sci. Rev. 461, 461–62 (1918). Nine States required voting on the day of the election, whether by proxy or by field voting. Id. at 464. New York’s law allowed commanding officers to set a date and account for military emergencies, but “in no case shall it be later than the day of the general or special election.” Ibid. Three States required ballots to be marked and submitted well before Election Day. Ibid. And West Virginia did not specify a date, so long as ballots were returned by mail “in time to be counted at home on election day.” Ibid. Thus, even during the height of wartime exigency, a ballot could be counted only if received by Election Day. 

It's not even really clear why one deadline works better than another. To use the Texas, the deadline for military ballots to be received this year is November 12. Any received after that won't count. So why November 12? Why can't that be November 5, the way it is for all other Texans? It will mean that Texans serving elsewhere will have to fill out and transmit their ballots earlier, but that's also true for Texans voting by mail (which is more restricted than most states). If we're invalidating ballots received on November 13 or later, why is that any different than invalidating those on received on November 6 for others? 

All of these questions will no doubt get some debate here and in Congress. However, it's very unlikely to apply in this cycle; Oldman referred it back to the district court for a remedy, and judges are loathe to interfere this late in an election cycle. Assuming this gets appealed to the Supreme Court, it won't have an impact until at least the next midterms, even if upheld, and perhaps might take as long as the 2028 cycle. 

If it does reach the Supreme Court, one has to assume this court would uphold the ruling and impose a little more discipline on states for managing elections. We might not even have to wait a week to find out the results in close elections. That in itself would enhance trust and credibility in elections.