David H. Gan’s article in Slate was featured in the Election Law Blog. Read an excerpt below:

In reaching this decision, the 5^th Circuit not only made a hash of federal law, but it also ignored the lengthy and fascinating Civil War–era history of state legislatures acting to protect the right to vote by permitting post–Election Day receipt of ballots—laws well known to Congress when it enacted the first statute establishing a uniform day for congressional elections in 1872. As the amicus brief the Constitutional Accountability Center filed in Watson recounts, during the Civil War, states across the country enacted a spate of laws to protect the voting rights of soldiers fighting far from their home states. To prevent disenfranchisement, many states enacted laws that permitted soldiers to vote under the supervision of commanding officers, who would then transmit ballots to election officials back home. Given the great distance ballots would have to travel and the likelihood of delay in the chaos of wartime, states wrote into their laws grace periods for ballots to be received by state election authorities to guarantee that all votes cast were properly counted and the rightful winner certified.

In Rhode Island, for example, an 1864 state constitutional amendment recognized that soldiers “in time of war” who were “absent from the state in the actual military service of the United States” retained “a right to vote” and sought to protect that right by permitting the ballots of soldiers to be received by state authorities “within the time prescribed by law for the counting of votes.” Ballots received by the deadline “shall be received and counted with the same effect as if given by such elector in open town, ward, or district meeting.” An 1864 Pennsylvania law established a similar scheme, providing for the mailing of military ballots and requiring state election officials to meet “on the third Friday, after any general or presidential election, for the purpose of counting the soldiers’ vote.”

A number of Southern and border states—whether they remained in the Union or seceded—provided explicit grace periods requiring state officials to wait for weeks to ensure that military voters were not disenfranchised by the delay in the receipt of their ballots. In the Union state of Maryland, for example, an 1864 constitutional provision required the governor to “wait for fifteen days after the day on which the State vote is taken, so as to allow the returns of the soldiers’ vote to be made before the result of the whole vote is announced.” In the confederacy, Georgia enacted a similar 15-day grace period, while Florida law provided an extra 20 days.

The 5^th Circuit willfully ignored this history, and the briefs filed by the RNC and the Trump administration’s solicitor general urging the justices to strike down the Mississippi law share the same flaw. In a pattern we’ve seen all too often, conservative litigants are seeking to move the law far to the right based on a fundamentally false historical narrative. The justices should not buy it. The historical record in Watson is clear and overwhelming: It shows that the Mississippi law permitting post–Election Day receipt of mail ballots has deep roots in our nation’s history and the law of democracy. As the history of absentee voting during the Civil War era shows, states have long permitted post–Election Day receipt of absentee ballots to safeguard voting rights and protect our foundational democratic principles…

Read the full article at Slate.