[Republican-appointed appellate judges continue to overturn
rulings to make mail-in voting easier. 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.]
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IN THE PANDEMIC FEDERAL JUDGES ARE BLOCKING EFFORTS TO EASE MAIL-IN
BALLOT RULES  
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Billy Corriher
October 22, 2020
Facing South [[link removed]]

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_ Republican-appointed appellate judges continue to overturn rulings
to make mail-in voting easier. 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. _

It was after 10 pm March 3rd, and the line stretched out of the
Robert James Terry Library at Texas Southern University as people
waited to cast their votes. The Houston Chronicle termed Texas
“ground zero in voting rights war.”, Jon Shapley, MBO / Associated
Press

 

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
[[link removed]],"
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
[[link removed]] 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
[[link removed]] a
2018 voter ID law and to require legislators to redraw
[[link removed]]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
[[link removed]] 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
[[link removed]] 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
[[link removed]] 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
[[link removed]] 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
[[link removed]] 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
[[link removed]],"
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
[[link removed]] 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
[[link removed]] by the 4th
U.S. Circuit Court of Appeals, which hears cases from the Carolinas,
Maryland, and Virginia. The 4th Circuit, however, was overruled
[[link removed]] 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
[[link removed]] 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
[[link removed]] 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
[[link removed]] 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
[[link removed]] 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
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to
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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
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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
[[link removed]] 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
[[link removed]] 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 [[link removed]] 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
[[link removed]] 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
[[link removed]] 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.

[_Billy Corriher is a contributing writer for Facing South whose work
focuses on judicial selection, voting rights, and the courts in North
Carolina. Billy has written about these issues for ThinkProgress, The
Hill, USA Today, The Los Angeles Times, Newsweek, and the Raleigh News
and Observer. He can be reached via twitter @billycorriher
[[link removed]]._]

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