This month, a federal judge struck down a decree from Texas Gov. Greg Abbott, limiting each county in the state to a single drop box to handle the surge in absentee ballots this election season, rejecting Abbott’s argument that the limit was necessary to combat fraud.
Days later, an appellate panel of three judges appointed by President Donald Trump froze the lower court order, keeping Abbott’s new policy in place — meaning Harris County, with more than 2 million voters, and Wheeler County, with well under 4,000, would both be allowed only one drop box for voters who want to hand-deliver their absentee ballots and avoid the Postal Service.
The Texas case is one of at least eight major election disputes nationwide in which U.S. district judges sided with civil rights groups and Democrats in voting cases, only to be stayed by the U.S. appeals courts, whose ranks Trump has done more to populate than any president in more than 40 years.
The rulings highlight how Trump’s drive to fill empty judgeships is yielding benefits to his re-election campaign even before any major dispute about the outcome may make it to the Supreme Court. He made clear the political advantages he derives from his power to appoint judges when he explained last month that he was moving fast to name a successor to Justice Ruth Bader Ginsburg so the Supreme Court would have a full contingent to handle any election challenges, which he has indicated he might bring in the event of a loss.
In appointing dozens of reliable conservatives to the appellate bench, Trump has made it more likely that appeals come before judges with legal philosophies sympathetic to Republicans on issues including voting rights. The trend has left Democrats and civil rights lawyers increasingly concerned that they face another major impediment to their efforts to assure that as many people as possible can vote in the middle of a pandemic — and in the face of a campaign by Republicans to limit voting.
“There has been a very significant number of federal voting rights victories across the country, and those have in the last week or two — many if not most — been stayed by appellate courts,” said Wendy Weiser, director of the Democracy Program at the Brennan Center for Justice at New York University, which has been involved in several voting rights lawsuits this year. “We’re seeing the brakes being put on the voting rights expansion at the appellate level in these jurisdictions, in many cases in ways that won’t be remediable before the election.”
In potentially pivotal states like Wisconsin and Ohio, the outcomes appear to be serving the president’s effort to limit voting while in some cases creating widespread confusion about the rules in the last weeks before Election Day.
There has been a dizzying amount of election-related litigation this year, with more than 350 cases playing out in state and federal courts. In general, the disputes focus on how far states can go to make it easier to apply for, fill out and send in mail ballots and how much time election officials can take to count what is certain to be a record number of them. In polls, Democrats have indicated that they are more likely than Republicans to vote by mail this year.
Democrats and civil rights groups have argued that certain provisions regarding ballots that may have made sense before the pandemic are unduly onerous in light of social distancing guidelines and delays throughout the overwhelmed Postal Service. Those include requiring excuses and witness signatures for absentee ballots, having strict Election Day deadlines for the official receipt of mail votes and the limited use of drop boxes.
Republicans have argued that easing those rules or expanding the use of drop boxes would leave the voting system so open to fraud and chaos that it would threaten the election’s very legitimacy.
A series of rulings handed down in the late summer and early fall rejected that argument, pointedly noting the dearth of evidence that fraud poses anything close to the threat that Trump and his GOP allies say it does.
Appeals courts stayed those decisions in Texas, Alabama and Ohio as well as a similar ruling in Wisconsin that had extended deadlines for mail-in ballots. The decisions in the cases came from panels including judges appointed to the appeals courts by Trump.
A state court case in Pennsylvania extending the deadline for the receipt of mail-in ballots, as well as the federal one in Wisconsin are now in front of the U.S. Supreme Court, which, with the expected confirmation of Judge Amy Coney Barrett, is likely to soon have a more decisive conservative majority.
Voting rights lawyers are bracing for the possibility of further 11th-hour uncertainty depending on the Supreme Court’s ruling in the Pennsylvania case, which could clear the way for even more state-level cases to find their way into the federal court system.
The appeals court rulings and some of the decisions by the Supreme Court have been generally based on notions that federal courts should not render decisions affecting state voting provisions too close to elections and that courts should be hesitant to override local voting laws concerning election deadlines and ballot requirements.
Mandi Merritt, the Republican National Committee’s press secretary, celebrated the party’s victories on appeal, portraying them as necessary checks on what she called the Democrats’ “radical attempts to overhaul our election system” and gut “election integrity” laws.
Lawyers from both sides are loath to ascribe partisan motives to sitting judges. And the decisions have sometimes defied ideological identities.
For instance, in Minnesota, a federal judge appointed by Trump rejected GOP attempts to roll back a mail-in ballot extension deadline, just as a Trump-appointed federal judge supported an agreement in Rhode Island to suspend the state’s rules requiring ballots have two witness signatures or notarization. The Supreme Court rejected a Republican challenge to the Rhode Island ruling in a decision in which Chief Justice John Roberts and Justice Brett Kavanaugh chose not to join a dissent by their three fellow conservatives.
Nonetheless, Trump has significantly affected the balance of the federal bench. Since taking office, Trump prioritized picking judges for the appeals court, with his selections appearing to trend more reliably conservative than past GOP appointees and now accounting for more than 25% of all active appellate judges.