Nearly half of states accept mail-in ballots that were mailed by Election Day, but arrive sometime after it. No court has ever questioned this practice, which is squarely within the purview of states’ election authority. But in an attempt to throw out possibly thousands of mail-in ballots, the Republican National Committee launched a challenge to the practice in Mississippi. And in a stunning opinion released late Friday, an ultra conservative panel of three Trump-appointed appellate judges agreed.
With the possibility of the ultimate promotion so close, there’s no room for squishiness.
Georgetown professor Steve Vladeck called the opinion “nuts on its face.” UCLA election law expert Rick Hasen called it “bonkers.” Legal reporter Chris Geidner explained that the opinion is the logical equivalent of Swiss cheese: “It’s a ruling that has to write around all of the laws that allow the receipt of ballots before Election Day, the federal laws that allow the receipt of ballots after Election Day, and all other practices that could contradict with such a strict definition of Election Day.” .
At oral argument, the three judges actually appeared circumspect of the RNC’s arguments, chief among them how to square early voting with the idea of an Election Day that proscribes a single day for casting ballots. Observers predicted that even this far-right panel wouldn’t throw out decades of unquestioned election law. And yet, on Friday evening, all three judges did just that.
And when you think about it, that was always going to be the outcome.
The 5th Circuit judges who heard the case—James Ho, Andrew Oldham, and Kyle Duncan—were all appointed by Trump and have significantly shifted the appeals court not just to the right, but by putting it in service of a Trumpian agenda that rules in favor of Republicans and against the federal government. All three have appeared use their position as part of an ongoing audition for an appointment to the US Supreme Court. And a vital step of the interview is happening right now.
Donald Trump may be only a few months from re-taking office and replacing Justices Samuel Alito and Clarence Thomas, who are reportedly looking to retire under a Republican president. With the possibility of the ultimate promotion so close, there’s no room for squishiness. This is the time for ambitious lower court judges to make their case. As long as one of the three is willing to throw out thousands of ballots to help Trump, then of course the others will join in.
If there is any sign of restraint, it’s that they did not put their decision into effect. Instead, they sent it back to the district court in Mississippi to decide the next steps. So it is likely that this ruling will not directly affect the 2024 election. While the Supreme Court could promptly take up the issue directly on appeal, it’s unlikely that the justices will use the case throw out ballots that lawfully arrive after Election Day, now that mail voting has already begun and people are making decisions based on laws as they currently stand. The Supreme Court, by its own doctrine, is not supposed to change the rules mid-game.
But by keeping the issue alive and casting doubt on the legality of ballots that arrive after Election Day, the 5th Circuit may have provided grist to those who wish to sow doubt about the election outcome after November 5. Whereas the panel’s decision injects some uncertainty into the 2024 election, its most obvious impact, beyond the career prospects of Ho, Oldham, and Duncan, is on future elections. If the Republican Party continues to believe its best long-term interests lie in disqualifying mail-in ballots, then it is likely this issue will rise to the US Supreme Court under the next president. If the court follows this panel’s logic, it will bar thousands of ballots from being counted in the future.
