Groups | Search | Server Info | Login | Register

Groups > alt.cheat.cheat.cheat > #8

Three Trump Judges Just Issued a Shock Ruling That Could Wreak Havoc on the Election

Cross-posted to 6 groups.

Show all headers | View raw

Cry and whine, bitches!

On Friday afternoon, the U.S. Court of Appeals for the 5th Circuit handed 
down a shock decision declaring that states may not count ballots that are 
mailed by Election Day but received shortly thereafter. By its own terms, 
the ruling applies only to Mississippi, throwing the legality of its 
voting procedures into question just 11 days before the election. 
Nationwide, however, 18 states and Washington D.C. accept late-arriving 
ballots; the 5th Circuit’s reasoning would render all these laws 
illegitimate and void, nullifying hundreds of thousands (if not millions) 
of ballots. The court’s obvious goal, aside from destabilizing a close 
election, is to tee up a Supreme Court decision that could wipe out all 
these laws in one fell swoop.

The Republican National Committee manufactured this dispute as a test case 
to end the widespread practice of accepting ballots that come in after 
Election Day, but are postmarked by Election Day. (Republicans believe 
that these ballots are disproportionately likely to support Democrats.) 
The RNC filed its lawsuit in Mississippi because that’s the one state 
within the 5th Circuit that counts late-arriving ballots, and conservative 
lawyers knew they could get a favorable ruling from the far-right court. 
RNC lawyers argued that federal law requires all votes to be received by 
Election Day, not just cast by Election Day. And they claimed that this 
federal rule overrides, or “preempts,” state laws to the contrary, 
including Mississippi’s.

U.S. District Judge Louis Guirola Jr. sharply rejected this argument. He 
pointed out that, under the Constitution, “the times, places and manner” 
of federal elections “shall be prescribed” by the states, though Congress 
may “make or alter” the state’s laws. Congress has not prescribed specific 
rules for mail ballots, instead leaving those decisions up to the states. 
The fact that Congress created one “Election Day” does not mean that it 
intended to void ballots that are cast by that date but, for whatever 
reason, arrive shortly thereafter.

Now the 5th Circuit has disagreed. The three-judge panel that decided this 
case is made up of extremely far-right, ultra-partisan appointees of 
Donald Trump: Andrew Oldham, Kyle Duncan, and James Ho. In his majority 
opinion joined by Duncan and Ho, Oldham latched onto federal law setting 
out “the day for the election.” He then declared that this is “the day by 
which ballots must be both cast by voters and received by state 
officials.” Oldham asserted that a ballot is not actually “cast” until 
“the state takes custody of it”—a contested question on which federal law 
is silent. By fabricating this atextual rule, he was able to insist that 
late-arriving ballots are actually “cast” after Election Day.

Oldham’s definition of the word “cast” is, to reiterate, not rooted in the 
text of the law. It also defies common sense: In regular English usage, a 
person has “cast” their ballot when they’ve returned it—by, for instance, 
dropping it in the mailbox. By relying on an idiosyncratic definition of 
the word that does not appear in federal law, Oldham was able to decree 
that late-arriving ballots are not “cast” on time. He therefore held that 
Mississippi’s law counting these ballots is preempted by federal statute.

There are massive practical, legal, and historical problems with this 
theory. The legal reasons are, again, obvious: Congress has never said 
that late-arriving ballots cannot count; some Republicans have proposed 
such a rule, but it has not passed. Indeed, federal law is largely silent 
on how, precisely, states should conduct early voting or mail voting. And 
in this silence, as Judge Guirola explained, courts must defer to the 
states, which hold primary authority under the Constitution to prescribe 
election procedures.

The alternative is chaos. States have spent decades developing their own 
rules around early and mail voting, many of which would be imperiled by 
the 5th Circuit’s logic. For instance, if Congress required voting 
exclusively on “the day for the election,” is all early, in-person voting 
also unlawful? Oldham said no, but his effort to draw a distinction is 
incoherent. He claimed that early votes are still “consummated” on 
Election Day, so they may count. The concept of an election’s 
“consummation,” though, appears nowhere in federal statute, and therefore 
cannot distinguish early voting from late-arriving ballots. It is 
painfully evident that Oldham is just making it up as he goes along.

The historical reasons why Friday’s decision is dead wrong are just as 
apparent. States have counted late-arriving absentee ballots for more than 
a century, and federal courts have never stopped them from doing so (until 
now). Oldham dismissed these historical examples as “outliers,” but he is 
wrong: The reality is that most states did not allow for broad mail voting 
until quite recently. Those states that did allow absentee voting 
frequently counted ballots cast by Election Day that came in shortly 
thereafter. Oldham simply sought to downplay this clear historical record 
to make a misleading, cherrypicked case against the practice.

Finally, the practical: Because 18 states and D.C.—including large states 
like California—already accept late-arriving ballots, the RNC sought a 
revolution in election law. Most states don’t report exactly how many of 
these ballots are tabulated each year. But there are a lot: In the 2022 
midterms, for example, Clark County, Nevada alone received and counted 
about 40,000 valid mail ballots after Election Day. Around the country, 
the number may well reach the millions, especially since California counts 
ballots received up to a week after Election Day. If the Supreme Court 
embraced the 5th Circuit’s reasoning, it would nullify all these ballots.

And that, to be clear, is the game plan. In contrast with recent practice, 
the 5th Circuit did not issue a preliminary nationwide injunction, but 
directed the district court to “fashion appropriate relief.” It is surely 
too close to the election to change the rules of the game under the 
Supreme Court’s Purcell principle. If these lower courts try to do so, it 
seems likely that SCOTUS will stop them. But the 5th Circuit has now 
created a vehicle for the justices to visit this issue after the election 
and potentially strike down nearly 20 states’ laws, making voting 
exponentially harder in the future.

It’s worth pausing to consider how cynical and political Friday’s decision 
was. The 5th Circuit could, and should, have held this case until after 
the election, in recognition that a sweeping decision would cast a pall of 
confusion and uncertainty over the imminent election. Now Mississippians 
do not know if their ballots will count should they happen to be slightly 
delayed by the postal service. Voters in many other states are on notice 
that the 5th Circuit has announced that, as a matter of federal law, their 
ballots should be tossed out if they come back slightly late. And people 
who reject the outcome of the election will seize upon the ruling to claim 
that the results are illegitimate. The 5th Circuit has given the RNC 
exactly what it wanted: an excuse to undermine voting rights and reject 
the legitimacy of the election. It is an appallingly partisan and anti-
democratic stunt with potentially catastrophic consequences.

https://slate.com/news-and-politics/2024/10/trump-judges-election-day-
voting-disaster.html

Back to alt.cheat.cheat.cheat | Previous | Next | Find similar

Thread

Three Trump Judges Just Issued a Shock Ruling That Could Wreak Havoc on the Election Jimmy Horn <jhorn@lsu.edu> - 2024-10-27 05:13 +0000

csiph-web