(C) Common Dreams
This story was originally published by Common Dreams and is unaltered.
. . . . . . . . . .



Three Trump Judges Just Issued a Shock Ruling That Could Wreak Havoc on the Election [1]

['Mark Joseph Stern', 'Shirin Ali']

Date: 2024-10-25 22:58:08+00:00

On Friday afternoon, the U.S. Court of Appeals for the 5th Circuit handed down a shock decision declaring that states may not count ballots that are mailed by Election Day but received shortly thereafter. By its own terms, the ruling applies only to Mississippi, throwing the legality of its voting procedures into question just 11 days before the election. Nationwide, however, 18 states and Washington, D.C., accept late-arriving ballots; the 5th Circuit’s reasoning would render all these laws illegitimate and void, nullifying hundreds of thousands (if not millions) of ballots. The court’s obvious goal, aside from destabilizing a close election, is to tee up a Supreme Court decision that could wipe out all these laws in one fell swoop.

Advertisement

The Republican National Committee manufactured this dispute as a test case to end the widespread practice of accepting ballots that come in after Election Day, but are postmarked by Election Day. (Republicans believe that these ballots are disproportionately likely to support Democrats.) The RNC filed its lawsuit in Mississippi because the state counts late-arriving ballots and falls within the 5th Circuit; conservative lawyers knew they could get a favorable ruling from the far-right court.* RNC lawyers argued that federal law requires all votes to be received by Election Day, not just cast by Election Day. And they claimed that this federal rule overrides, or “preempts,” state laws to the contrary.

U.S. District Judge Louis Guirola Jr. sharply rejected this argument. He pointed out that under the Constitution, “the times, places and manner” of federal elections “shall be prescribed” by the states, though Congress may “make or alter” the state’s laws. Congress has not prescribed specific rules for mail ballots, instead leaving those decisions up to the states. The fact that Congress created one “Election Day” does not mean that it intended to void ballots that are cast by that date but, for whatever reason, arrive shortly thereafter.

Advertisement

Now the 5th Circuit has disagreed. The three-judge panel that decided this case is made up of extremely far-right, ultrapartisan appointees of Donald Trump: Andrew Oldham, Kyle Duncan, and James Ho. In his majority opinion joined by Duncan and Ho, Oldham latched on to federal law setting out “the day for the election.” He then declared that this is “the day by which ballots must be both cast by voters and received by state officials.” Oldham asserted that a ballot is not actually “cast” until “the state takes custody of it”—a contested question on which federal law is silent. By fabricating this atextual rule, he was able to insist that late-arriving ballots are actually “cast” after Election Day.

Advertisement

Advertisement

Advertisement

Advertisement

Oldham’s definition of the word “cast” is, to reiterate, not rooted in the text of the law. It also defies common sense: In regular English usage, a person has “cast” their ballot when they’ve returned it—by, for instance, dropping it in the mailbox. By relying on an idiosyncratic definition of the word that does not appear in federal law, Oldham was able to decree that late-arriving ballots are not “cast” on time. He therefore held that Mississippi’s law counting these ballots is preempted by federal statute.

Related From Slate Here’s What Was in the Evidence Document Trump Really Didn’t Want Unsealed Read More

There are massive practical, legal, and historical problems with this theory. The legal reasons are, again, obvious: Congress has never said that late-arriving ballots cannot count; some Republicans have proposed such a rule, but it has not passed. Indeed, federal law is largely silent on how, precisely, states should conduct early voting or mail voting. And in this silence, as Guirola explained, courts must defer to the states, which hold primary authority under the Constitution to prescribe election procedures.

Advertisement

The alternative is chaos. States have spent decades developing their own rules around early and mail voting, many of which would be imperiled by the 5th Circuit’s logic. For instance, if Congress required voting exclusively on “the day for the election,” is all early, in-person voting also unlawful? Oldham said no, but his effort to draw a distinction is incoherent. He claimed that early votes are still “consummated” on Election Day, so they may count. The concept of an election’s “consummation,” though, appears nowhere in federal statute, and therefore cannot distinguish early voting from late-arriving ballots. It is painfully evident that Oldham is just making it up as he goes along.

Advertisement

The historical reasons why Friday’s decision is dead wrong are just as apparent. States have counted late-arriving absentee ballots for more than a century, and federal courts have never stopped them from doing so (until now). Oldham dismissed these historical examples as “outliers,” but he is wrong: The reality is that most states did not allow for broad mail voting until quite recently. Those states that did allow absentee voting frequently counted ballots cast by Election Day that came in shortly thereafter. Oldham simply sought to downplay this clear historical record to make a misleading, cherry-picked case against the practice.

Advertisement

Advertisement

Finally, the practical: Because 18 states and D.C.—including large states like California—already accept late-arriving ballots, the RNC sought a revolution in election law. In fact, another state within the 5th Circuit, Texas, counts ballots with a timely postmark that arrive by 5 p.m. the day after Election Day; this decision would invalidate that law too. Most states don’t report exactly how many of these ballots are tabulated each year. But there are a lot: In the 2022 midterms, for example, Clark County, Nevada, alone received and counted about 40,000 valid mail ballots after Election Day. Around the country, the number may well reach the millions, especially since California counts ballots received up to a week after Election Day. If the Supreme Court embraced the 5th Circuit’s reasoning, it would nullify all these ballots.

Advertisement

Advertisement

Advertisement

And that, to be clear, is the game plan. In contrast with recent practice, the 5th Circuit did not issue a preliminary nationwide injunction, but directed the district court to “fashion appropriate relief.” It is surely too close to the election to change the rules of the game under the Supreme Court’s Purcell principle. If these lower courts try to do so, it seems likely that SCOTUS will stop them. But the 5th Circuit has now created a vehicle for the justices to visit this issue after the election and potentially strike down nearly 20 states’ laws, making voting exponentially harder in the future.

It’s worth pausing to consider how cynical and political Friday’s decision was. The 5th Circuit could, and should, have held this case until after the election, in recognition that a sweeping decision would cast a pall of confusion and uncertainty over the imminent election. Now Mississippians do not know if their ballots will count should they happen to be slightly delayed by the postal service. Voters in many other states are on notice that the 5th Circuit has announced that, as a matter of federal law, their ballots should be tossed out if they come back slightly late. And people who reject the outcome of the election will seize upon the ruling to claim that the results are illegitimate. The 5th Circuit has given the RNC exactly what it wanted: an excuse to undermine voting rights and reject the legitimacy of the election. It is an appallingly partisan and antidemocratic stunt with potentially catastrophic consequences.

[END]
---
[1] Url: https://slate.com/news-and-politics/2024/10/trump-judges-election-day-voting-disaster.html

Published and (C) by Common Dreams
Content appears here under this condition or license: Creative Commons CC BY-NC-ND 3.0..

via Magical.Fish Gopher News Feeds:
gopher://magical.fish/1/feeds/news/commondreams/