This month, a federal judge overturned an executive order by Governor Greg Abbott of Texas limiting every county in the state to a single drop box to handle the surge in mail-order votes this election season, dismissing the argument from Mr. Abbott that the limit was necessary to combat fraud.
Days later, an appeal panel of three judges appointed by President Trump froze the lower court order, keeping Mr Abbott’s new policy in place – meaning Harris County, with more than two million voters, and Wheeler County, with well under 4,000, would both. allow only one drop box for voters who wish to hand deliver their postal ballots and avoid relying on the postal service.
The Texas case is one of at least eight major electoral disputes in the country in which Federal District Court judges have sided with civil rights groups and Democrats in voting cases for be suspended by federal courts of appeals, whose ranks Mr. Trump has done more to populate than any president for more than 40 years.
The rulings highlight how Mr. Trump’s drive to fill empty judicial posts is benefiting his re-election campaign even before a major dispute over the outcome reaches the Supreme Court. He made it clear the political advantages he reaped from his power to appoint judges when he explained last month that he would quickly appoint a successor to Justice Ruth Bader Ginsburg so that the Supreme Court has a contingent complete to handle any election challenges, which he indicated he could sue for loss.
By appointing dozens of reliable Conservatives to the appellate bench, Mr. Trump has made appeals more likely to be brought before judges with a pro-Republican legal philosophy on issues such as the right to vote. The trend has left Democrats and civil rights advocates growing concerned that they face another major obstacle to their efforts to ensure that as many people as possible can vote in the midst of ‘pandemic – and in the face of a Republican campaign to limit the vote.
“There have been a very significant number of federal voting rights victories across the country and these have been suspended for the past two weeks, if not most, by appellate courts,” said Wendy R. Weiser, Director of the Democracy Program. at New York University’s Brennan Center for Justice, which has been involved in several voting rights lawsuits this year. “We see the brakes on expanding appeal-level voting rights in these jurisdictions, in many cases in a way that will not be fixable until the election.”
In potentially pivotal states like Wisconsin and Ohio, the results appear to serve the president’s efforts to limit the vote while in some cases creating widespread confusion about the rules just three weeks before election day.
There has been a dizzying amount of election-related litigation this year, with more than 350 pending cases in state and federal courts. Typically, disputes revolve around how far states can go to facilitate the request for, filling out, and mailing of ballots, and the time that election officials can take to count what is certain to be. be a record number of them. In polls, Democrats have indicated they are more likely than Republicans to vote by mail this year.
Democrats and civil rights groups have argued that some ballot provisions that may have made sense before the pandemic are disproportionately onerous in light of social distancing guidelines and delays in the severely overwhelmed postal service . These include requiring apologies and witness signatures for postal ballots, having strict deadlines on election day for the official receipt of postal votes and limited use of drop boxes. .
Republicans, led by Mr. Trump, have argued that relaxing these rules or expanding the use of drop boxes would leave the voting system so open to fraud and chaos that it threatens legitimacy even of the election.
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A series of rulings in late summer and early fall dismissed this argument, pointedly highlighting the lack of evidence that the fraud represents anything close to the threat that the president and his Republican allies say. ‘she does.
“The state has provided no real example of electoral fraud,” said Judge Robert Pitman, appointed by President Barack Obama, in preventing Mr. Abbott at the district court level from limiting drop boxes in Texas, where Democrats have made substantial progress in recent years.
“The record shows that voter fraud rarely occurs today,” said another Obama-appointed district court judge Abdul K. Kallon, who has decided to ease voting conditions in Alabama, where Republicans hope to overthrow incumbent Democratic President Senator Doug Jones.
“No evidence was presented at the hearing to support the conclusive reference to fraud,” wrote Judge Dan Aaron Polster, appointed by Clinton to a district court, to dismiss attempts to limit drop boxes in Ohio, a state Democrats believe they can pass to their column in the presidential election.
Appeals courts stayed those rulings in Texas, Alabama and Ohio, along with a similar ruling in Wisconsin that extended deadlines for postal ballots. Decisions in the cases came from committees including judges appointed to appellate courts by Mr. Trump.
A court case in Pennsylvania extending the deadline for receiving mail-in ballots, as well as the federal decision in Wisconsin, is now before the United States Supreme Court, which, with pending confirmation from Justice Amy Coney Barrett , is likely to have a more decisive conservative majority soon.
Voting rights lawyers are bracing for the possibility of additional 11th hour uncertainty based on the Supreme Court’s decision in the Pennsylvania case, which could pave the way for even more cases at the level of the States to work their way through the federal court system.
Appeals court rulings and some of the Supreme Court decisions are generally based on the idea that federal courts should not make decisions affecting state voting arrangements too close to elections, and that courts should be reluctant to override local election laws regarding time limits and elections. voting conditions.
Mandi Merritt, the national press secretary for the Republican National Committee, celebrated the party’s victories on appeal, presenting them as necessary checks on what she called “the Democrats'” radical attempts to overhaul our electoral system “and void “electoral integrity” laws.
Lawyers on both sides are loath to attribute partisan motives to sitting judges. And the decisions have sometimes challenged ideological identities.
For example, in Minnesota, a federal judge appointed by Mr. Trump rejected Republican attempts to roll back a postal ballot extension deadline, just as a federal judge appointed by Trump supported a deal in Rhode Island to suspend elections. strict state rules requiring the ballot. have two witness signatures or a notarization. The Supreme Court rejected a Republican challenge to the Rhode Island ruling in a ruling in which Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh chose not to join a dissent from their three colleagues preservatives.
Nonetheless, Mr. Trump has significantly affected the balance of the federal judiciary. Since taking office, Mr Trump has prioritized the selection of judges for the appeals court, with his selections appearing to have a more cautious trend than former Republican appointees and now representing more than 25% of all judges in the United States. active call.
“One of the stories of the Trump administration has been a laser focus on getting ideologically conservative young judges into appeals courts,” said Russell Wheeler, visiting scholar at the Brookings Institution and former deputy director of the Federal Judicial Center, the research and education arm of the federal justice system.
Generally speaking, when it comes to the right to vote, modern Conservative case law tends to distrust the race-based protections imposed by the federal government – adopted to eliminate decades of intentional deprivation of the right to vote – and gives the right to vote. priority for states’ rights to impose restrictions to prevent fraud, despite the evidence. may or may not show, above the need to protect voting access.
Progressive activists who pushed for the expansion of the Supreme Court funded a recent study that found a partisan pattern in voting rights decisions, concluding that Trump’s appointees made “anti-democratic” decisions in 85 % of cases related to elections. heard.
“Elections have consequences, and district courts are now more conservative than they were when Donald Trump took office,” said Nathaniel Persily, professor at Stanford Law School, specializing in law voting rights and the right to vote. “We shouldn’t be surprised that panels, on average, are now more conservative in how they judge these voting cases.”
Mr. Trump shifted the ideological balance of two particular appellate courts with jurisdiction over the states that might ultimately decide the election: the Third Circuit, which covers Pennsylvania, and the 11th Circuit, which covers Florida and the United States. Georgia.
It has also significantly eaten away at the Liberal majority in the Ninth Circuit, which includes the competitive states of Arizona and Nevada.
While the circuit overseeing Texas has long been known for its conservatism, the three Trump-appointed people who made the recent drop-box ruling have been particularly formidable allies for Republicans.
Democrats have indicated that they are basing their strategy for the final phase of the campaign on the idea that they are unlikely to win, at least consistently, at the federal appeals court and the Supreme Court. They said they hoped to accumulate margins too large to be overcome by legal challenges.
“Plan A is to win so decisively that fringe disputes cannot affect the outcome,” said Ben Wikler, chairman of the Wisconsin Democratic Party.
Some Democrats have said they fear court rulings in the days or weeks just before polling day could create confusion that Mr. Trump could try to exploit while challenging a losing result. (For example, a Texas state judge ruled Thursday against Mr. Abbott’s restrictions on drop boxes, overturning the federal appeal decision and leaving the issue uncertain before next month’s election.)
The higher the level of confusion, said Persily, the more likely it is that the end results will end up in front of the judges.
“The most important thing is that we have clear rules right now on how this election is going to go,” he said. “Although there are good rules and bad rules, it is better to have one rule than no rule at all. The more uncertainty the courts inject into the process at this time, the more likely there is to be post-election litigation.