In the final weeks of the 2020 election, Republican-appointed appellate judges have overturned rulings that required states to make mail-in voting easier during the COVID-19 pandemic. Tens of millions of ballots have already been cast, even as federal judges kept changing the rules.
These decisions could be reviewed by the U.S. Supreme Court, which will include a 6-3 conservative majority if nominee Amy Coney Barrett is confirmed by the U.S. Senate next week as planned. So far, the court has ruled against voters in nearly every case it has reviewed.
Many of these rulings have been part of the court's "shadow docket," which includes time-sensitive "emergency" orders issued without full arguments. These orders are often unsigned.
This week, for example, the U.S. Supreme Court blocked curbside voting in Alabama, overturning a lower court's decision.
The court also split 4-4 this week on whether to block a Pennsylvania Supreme Court ruling that the state constitution required an extension of the deadline for receiving mail-in ballots, thus letting the lower court's ruling stand. Republicans had argued that the Pennsylvania court's ruling violated Article II of the U.S. Constitution, which gives legislatures the power to "direct" how each state's Electoral College delegates are chosen. This argument would give federal judges more power to overturn state courts, which are supposed to have the final say on interpreting state law.
The unsigned order didn't explain the justices' reasoning, and four conservative justices — Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas — voted to block the state court's ruling.
Some court observers speculated that if Barrett had been on the court, she would have sided with the four justices who wanted to intervene. A ruling like that could empower federal judges in other states to overturn state court decisions that protect voting rights, such as rulings by North Carolina courts to block a 2018 voter ID law and to require legislators to redraw gerrymandered congressional election districts.
If Barrett provides a fifth vote for federal intervention, these rulings could be overturned by the federal judiciary, which has been reshaped by appointees of President Donald Trump.
Southern courts make it hard to vote
Some federal judges have ruled in favor of voters, but the two appellate courts that hear cases from the Deep South have overturned those decisions. This week, for example, the 5th U.S. Circuit Court of Appeals ruled that Texas doesn't have to notify voters before throwing out mail-in ballots if the signature on the envelope doesn't match voter registration records.
Judge Jerry Smith, who was appointed by President Ronald Reagan after Congress added seats to all of the appellate courts in 1984, began by noting that it's only "a few days" before the election. Smith emphasized that the lower court's ruling was issued at a time "when the need to ensure election security is at its zenith." A concurring judge urged "caution in wading into a change of election rules while voting is underway" to justify overturning the lower court's order, which was issued on Sept. 8.
The 5th Circuit includes only five Democratic appointees out of 17 judges. In recent years, Trump has filled vacant seats that the Republican-controlled U.S. Senate refused to fill with President Barack Obama's nominees.
The court, which also hears appeals from Louisiana and Mississippi, recently upheld an executive order by Texas Gov. Greg Abbott (R) to limit the number of ballot drop boxes per county to one, regardless of the county's size. "It's no surprise that Republicans would use the courts to muffle the voice of the rising Texas electorate," Gilberto Hinojosa, head of the state Democratic Party, told the Texas Tribune.
The 11th U.S. Circuit Court of Appeals, half of whose judges were appointed by Trump, also overturned lower court rulings in Alabama and Georgia to ease restrictions on voting by mail. A lower court had ruled that Alabama couldn't impose its photo ID and witness requirements for mail-in ballots, but the 11th Circuit disagreed and overturned a ruling in favor of the state NAACP. While the appellate court did uphold the state's practice of offering curbside voting, the U.S. Supreme Court overturned that decision on Wednesday.
Two Trump appointees on the 11th Circuit recently overturned a judge's decision to extend Georgia's Election Day deadline for receiving mail-in ballots. Nearly 9,000 ballots weren't counted in this year's primary election in Georgia because they weren't received in time. Judge Barbara Lagoa, a Trump appointee who also recently voted to uphold a Florida law that a lower court judge had deemed a "poll tax," claimed in her opinion that "all election laws burden the right to vote." Lagoa cited the state's interest in preventing "voter fraud," even though only a handful of cases have been found among millions of votes cast in recent U.S. elections.
In South Carolina, federal judges struck down the state's strict witness requirement for mail-in ballots during the pandemic, a ruling that was upheld by the 4th U.S. Circuit Court of Appeals, which hears cases from the Carolinas, Maryland, and Virginia. The 4th Circuit, however, was overruled by the U.S. Supreme Court, with three conservative justices going even further to say they would have thrown out thousands of ballots that didn't include witness signatures.
In North Carolina, voting rights advocates sued officials in state court, seeking to ease mail-in ballot rules in the pandemic, and elections officials agreed to settle the case by relaxing the requirements. A state judge signed off on the settlement, but Republicans took the case to federal court, where Judge William Osteen ruled that the settlement violated the U.S. Constitution. His decision laid out what he called "a framework" established in part by Bush v. Gore, the U.S. Supreme Court's ruling that handed the 2000 presidential election to George W. Bush — even though the justices in Bush v. Gore explicitly said their ruling was "limited to the present circumstances."
This week, the 4th Circuit — the South's only federal appellate court that hasn't been radically reshaped by Trump — overturned Osteen's decision. The three judges who dissented accused the lower court of undoing "the work of elected state legislatures" just before an election.
Packing the courts?
The U.S. Supreme Court's recent rulings have led to calls for Democrats to add more justices to the bench if the election leads to a Democratic president and U.S. Senate. But critics of what some call "court packing" warn that it would lead Republicans to change the size of the court the next time they control Congress and the White House, thus jeopardizing the court's legitimacy.
Many advocates of adding justices argue that Republicans at the state and federal level have already packed courts. Republicans lawmakers in Georgia, for example, added two seats to the state Supreme Court in 2016, giving then-Gov. Nathan Deal (R) the chance to create a conservative majority that is still in power. And in 2016 and again in 2018, North Carolina Republicans floated the idea of adding members to the state Supreme Court to undo the voters' decision to elect a progressive majority, though they didn't follow through.
Some are calling on Democrats to pack other federal courts as well. Take Back the Court, a group that advocates court expansion, recently released a study showing that Trump-appointed judges have ruled against voters in 85% of the election-related cases they've heard.
The leaders of Demand Justice, a progressive group that also advocates court expansion, wrote an op-ed in June that discussed President Jimmy Carter's groundbreaking appointments to new federal courts, which followed a bipartisan bill that "expanded the number of judges in America by nearly one-third." Carter appointed women and people of color to the bench, more than all the previous presidents combined. He also put civil rights lawyers on the bench.
Trump has undone much of Carter's legacy of judicial diversity, and expanding the South's lower courts could reverse that trend. It would also help ensure that the judiciary reflects the region's emerging non-white majority.