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Trump Judges Pen 'Election Day' Fan Fiction That Tosses Bunches Of Ballots

Everyone knows the definition of 'Election Day' is about casting ballots. What these Trump judges suppose is, 'What if it isn't?'

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Election Voter SuppressionFor most of us versed in the English language, “Election Day” means “the day that people go out and vote.” Historically, this might have meant the only day that citizens (just the white men owning property if we’re getting really originalist) could vote. But the country has traditionally recognized “Election Day” more as a deadline than a singular window — the last chance for any concerned citizen to cast their ballot. What the term has never meant either lexically or historically is that votes can’t be counted after Election Day assuming they were validly and verifiably cast before the deadline.

It’s like saying it’s not a valid birthday present if your gift arrives in the mail the next day just because the mail doesn’t deliver on Sunday. They aren’t “belated” gifts unless they’re ordered after the event.

We all know this, but a Fifth Circuit panel of America’s thirstiest conservative judges have disagreed in a new audition tape crafted for an audience of one. Or maybe two… Donald Trump and Federalist Society puppetmaster Leonard Leo. Andy Oldham, James Ho, and Stuart Kyle Duncan each imagines themself as Trump’s next Supreme Court nominee and they’ve demonstrated a fierce interest in using their office to grandstand for attention from right-wing media and boost their Q score with the QAnon set. Oldham is prone to throwing lengthy hissy fits when his colleagues cite statutory provisions running counter to his policy preferences, Ho will never shrink from a fight no matter how bereft of logic, and Duncan constantly scans the horizon for an opportunity to portray himself as a victimized special snowflake.

Late last week, this Fifth Circuit panel produced another gem of Republican judicial reasoning, explaining that — contrary to your dictionary or understanding of history — the words “Election Day” mean BOTH that ballots have to be cast (obviously) and received (wha?) by close of business.

If you’re, say, in the Armed Forces serving the country and hoping to vote… well, you might be out of luck! This is why Trump calls them “suckers” and “losers.”

During COVID, the GOP made it a priority to undermine public faith in mail-in voting and this challenge aimed to further the effort by tossing ballots that Mississippi state law considers validly cast on or before Election Day by rewriting election law to both assert that when federal law uses the term it usurps a state’s right to manage its own election and that part of that supremacy requires striking down any law allowing a ballot postmarked before the election but received afterward.

So much for federalism.

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“Text, precedent, and historical practice confirm this ‘day for the election’ is the day by which ballots must be both cast by voters and received by state officials,” they write. No one ever thought this. Imagine the Framers, living in an age of horse-drawn mail, conceiving of election results being instantly transmitted via modern technology. The Fifth Circuit is home to the city of New Orleans, where the U.S. once fought a battle there after the peace treaty was signed because everyone understood that news traveled at a snail’s pace.

The opinion nods to this, suggesting that counting ballots received by Election Day can continue after the end of business, but ballots cast & postmarked before Election Day but not received until later can’t be. There’s not much behind this distinction… from the perspective of state tabulators, ballots arriving by horseback from the far-reaches of the state were always after Election Day, but understood to have left the voter’s hand before the deadline.

Nor does this make sense in the context of their claim that federal law set an “Election Day” that then necessarily supersedes any state law regarding the casting or receiving of ballots. As Professor Steve Vladeck notes:

That federal law fixes a date for elections does not thereby fix a date on which all votes must be cast (or else all early voting and mail-in voting would be unlawful).

But Republicans think early voting is good so the judges’ claim that that the federal government has set a definition of a singular “Election Day” wiping out all state laws must be artificially limited to just state laws on the back end of the process and not a bar on states allowing voting before Election Day. The decision does not engage with this fundamental failing.

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“Even if the ballots have not been counted, the result is fixed when all of the ballots are received and the proverbial ballot box is closed,” they contend. “The selections are done and final.”

“Proverbial” is a curious word to use here since the “proverbial” ballot box could just as easily include the United States Postal Service. Selections are just as “done and final” when dropped into the mailbox the day before Election Day.

As the opinion admits, historically, the U.S. allowed soldiers to dump ballots in a box in the field which would then by transmitted back to the state’s central accounting long after. The panel shrugs this off as different because the box that Civil War soldiers used at the time “counts” — in the judges’ minds — as a ballot box in the way dropping it into the federal postage system does not, despite the military long ago adopting that procedure. To this, the opinion cites some states that chose to impose an earlier deadline for receipt of absentee ballots and substituted this for proof that states could not set a later date.

This is “Jimmy is tall, NBA players are tall, Jimmy plays in the NBA” reasoning that the LSAT is designed to root out of the profession.

Not only does this not make sense logically, the “history and tradition” of the country includes numerous examples of states accepting verifiably cast but not received ballots after an election deadline. Upwards of 18 states are doing it right now! The judges incur carpel tunnel with all the handwaving required to get out of this:

A few “late-in-time outliers” say nothing about the original public meaning of the Election-Day statutes.

Now you might think that statement would be backed by some case citation related to Election Day statutes. But you’d be wrong! Instead, this is backed by citation to exactly TWO cases: Bruen and Dobbs. Can’t let an opinion go by without signaling their ideological bona fides.

There’s also no good reason why federal law’s use of the words “Election Day” would carry this meaning when there’s never been a federal law with this language — even as Congress knew full well that some states counted these ballots. “Nothing in these statutes says that States are allowed to accept and count ballots received after Election Day,” the opinion admits. “Other statutes invoked by both parties and amici suffer from the same deficiencies: All are silent on ballot receipt and Election Day timing.”

Normally, where statutes are silent, textualists don’t invent new language for them.

But this is not a congressional-silence case. As demonstrated in Part II, other federal statutes—in their text, tradition, and interpretation by the Supreme Court—do require States to receive all ballots by Election Day.

That might make you think that Part II includes some statutes that, you know, “text, tradition, and interpretation” say something about the time of receipt. But there’s a reason why the opinion doesn’t square these arguments against each other in the same section: it would make it too obvious how sloppy this line of argument really is.

Part II cites only a handful of federal statutes. Like this one:

The Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States and Territories of the United States, of Representatives and Delegates to the Congress commencing on the 3d day of January next thereafter.

Which is notably silent on the subject of receipt. What about this one?

“election day” means the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President held in each State, except, in the case of a State that appoints electors by popular vote, if the State modifies the period of voting, as necessitated by force majeure events that are extraordinary and catastrophic, as provided under laws of the State enacted prior to such day, “election day” shall include the modified period of voting.

That… actually seems to both assume that Election Day isn’t fixed AND explicitly charges the state and not the federal government with setting those conditions. These are, remember, the statutes that the judges point to as proof that Congress is not “silent” on the requirement that votes must not just be cast but received.

Just amateurish work all around.

Thankfully, this opinion is in limbo right now because the judges expressly sent it back to the district court to come up with appropriate relief and the lower court will, presumably, follow established precedent and not do anything until after this election cycle. But, as Mark Joseph Stern notes, the damage could already be done:

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 antidemocratic stunt with potentially catastrophic consequences.

“Stunt” is a good word for it. But hey, it’s all about the hustle and this trio did exactly what they needed to do to get on Trump’s SCOTUS shortlist.

(Opinion on the next page…)

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