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TUESDAY, December 06, 2022
Judges nominated by President Trump play key role in upholding voting limits ahead of Election Day

Judges nominated by President Trump play key role in upholding voting limits ahead of Election Day

SUNDAY, November 01, 2020

Federal judges nominated by President Donald Trump have largely ruled against efforts to loosen voting rules in the 2020 campaign amid the coronavirus pandemic and sided with Republicans seeking to enforce restrictions, underscoring Trump's impact in reshaping the judiciary.

Supreme Court Justice Neil Gorsuch, Justice Brett Kavanaugh and Chief Justice John Roberts arrive for the State of the Union address at the U.S. Capitol on Feb. 5, 2019. MUST CREDIT: Washington Post photo by Ricky Carioti.

An analysis by The Washington Post found that nearly three out of four opinions issued in federal voting-related cases by judges picked by the president were in favor of maintaining limits. That is a sharp contrast with judges nominated by President Barack Obama, whose decisions backed such limits 17% of the time.

The impact of Trump's court picks could be seen most starkly at the appellate level, where 21 out of the 25 opinions issued by the president's nominees were against loosening voting rules.

The pattern shows how Trump's success installing a record number of judges in his four years in office has played a critical role in determining how people can vote this year and which ballots will be counted. The president's imprint on the courts culminated this week with the confirmation of Amy Coney Barrett, the third justice he has successfully nominated to the Supreme Court.

Photo by: The Washington Post — The Washington Post

The opinions by Trump nominees have been among hundreds issued throughout the country as the courts have contended with a record number of cases related to voting and the administration of this year's election.

The litigation has been driven by both efforts of Democrats and voting-rights groups to expand access to mail voting because of the public health crisis and challenges filed against the relaxation of some state rules by Republicans, who have argued that such actions open the door to widespread fraud.

Many judges have been skeptical of such claims by the GOP and Trump's campaign, calling allegations about fraud speculative and hypothetical.

Trump nominees have not uniformly sided with Republicans. But many have ruled in favor of the GOP in major cases involving rules about mail voting, ballot deadlines and signature requirements that have affected millions of Americans, many of whom are casting votes by mail for the first time because of concerns about the health risks of in-person voting.

A central argument of the president's picks on the bench: that state legislatures, not the courts, should set the rules for voting, even in a pandemic.

Wendy R. Weiser of the Brennan Center for Justice, a nonprofit group that has advocated for expanded mail voting this year, said that judges nominated by Trump are "not uniformly against voting rights."

But, she noted, "it is absolutely the case that Donald Trump has filled a lot of appointments, flipped a lot of courts and led to majorities on panels where a lot of the judges ruling against voting rights were his appointees."

In a Texas case, three judges nominated by Trump unanimously upheld the Republican governor's limit of one ballot drop-off location per county that state officials say is necessary to prevent voter fraud. In Georgia, a pair of Trump nominees reinstated an Election Day deadline for mail-in ballots to be counted at the urging of GOP officials.

In a Wisconsin case that reached the Supreme Court this week, a Trump nominee was part of the two-judge majority at the U.S. Court of Appeals for the 7th Circuit that rejected an extension of the deadline for receiving mail ballots in the battleground state. And a three-judge panel of the U.S. Court of Appeals for the 8th Circuit ruled Thursday night that a Republican lawmaker and GOP activist could challenge Minnesota's plan to count ballots that arrive after Election Day.

A Trump nominee also joined the majority in a Tennessee case in October to uphold signature-match rules for mail ballots. That decision, rejecting a challenge from voting rights groups, drew a sharp dissent from Judge Karen Nelson Moore, a nominee of President Bill Clinton. She broadly criticized her judicial colleagues throughout the country, listing a series of cases in which she said courts "have sanctioned a systematic effort to suppress voter turnout and undermine the right to vote."

"Many courts are chipping away at votes that ought to be counted. It is a disgrace to the federal courts' foundational role in ensuring democracy's function, and a betrayal to the persons that wish to participate in it fully," Moore wrote.

"On its own, today's ruling may not-likely will not-change the course of this election. But it is another drop in the bucket that is the degradation of the right to vote in this country. . . . I fear the day we come out from behind the courthouse doors only to realize these drops have become a flood."

Nationally, the number of election-related lawsuits has nearly tripled in the years since the contested 2000 presidential election and Supreme Court decision in Bush v. Gore, according to Richard Hasen, an election law expert and professor at the University of California at Irvine School of Law who has tracked related litigation since 1996. The massive increase in legal action this cycle, more than 300 cases so far, is driven largely by coronavirus-related challenges to existing restrictions or to changes in the rules designed to make it easier to vote by mail because of the risks associated with in-person voting during a pandemic.

Trump has repeatedly claimed without evidence that there is a heightened risk of fraud with mail ballots and wrongly suggested again this week that it would be illegal for states to count ballots received after Election Day.

"Big problems and discrepancies with Mail In Ballots all over the USA. Must have final total on November 3rd," he said in a tweet this week labeled potentially misleading by Twitter.

Even as he has reshaped the judiciary with 220 new judges since 2017 - and quickly filled vacancies particularly on the nation's 13 circuit courts - some of Trump's nominees have rejected his claims of fraud and allowed more time for mail-in ballots to be tallied after Election Day.

In Pennsylvania, one of the president's picks, District Judge Nicholas Ranjan, rebuffed the Trump campaign's allegations of potential fraud as "speculative." The judge dismissed the campaign's lawsuit seeking to prevent the use of drop boxes for mail ballots, impose a signature match requirement and allow nonresident poll watchers.

"While Plaintiffs may not need to prove actual voter fraud, they must at least prove that such fraud is 'certainly impending,' " Ranjan wrote. "They haven't met that burden. At most, they have pieced together a sequence of uncertain assumptions."

All three judges Trump nominated to the Richmond-based appeals court rejected efforts by Republicans and the president to stop a six-day extension for mail-in ballots to be counted in North Carolina. Judges Marvin Quattlebaum, Julius Richardson and Allison Rushing joined nine other judges in upholding the extra time approved by the state's Board of Elections. 

The Supreme Court this week allowed the extension favored by Democrats and voting-rights advocates to remain in place.

On the flip side, Quattlebaum and Rushing objected when the court left in place a pandemic-related order blocking South Carolina's witness signature requirement. In that case, the dissenters said the federal court should not set the rules for state elections and called the requirement a sensible measure. The Supreme Court sided with South Carolina Republicans and reinstated the signature requirement.

The Trump nominees who are in the position to have the biggest impact are on the Supreme Court, typically the last stop for decisions on voting procedures. Justices Neil Gorsuch and Brett Kavanaugh have not embraced the president's views about widespread fraud, even as they have turned down efforts to loosen voting rules in states including Wisconsin, Alabama and South Carolina.

The decisions from the two justices in election-related cases "have not been particularly Trumpian" in that the justices are not "indulging in fantasies about voter fraud," said Justin Levitt, an election law expert at Loyola Law School in Los Angeles.

Instead, the court's conservative majority, including Kavanaugh and Gorsuch, has mostly been reluctant to interfere with state voting procedures so close to an election or to supersede the actions of state legislatures.

Kavanaugh's opinion in the Wisconsin case, however, drew criticism from liberals for seeming to echo Trump's concerns when he wrote that "states want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election."

Barrett did not participate in two election-related cases that came before the court this week, indicating through a court spokeswoman that she had not had time to fully review the legal arguments, having just started work on Tuesday.

It has been at the appellate court level where expanded voting rules have repeatedly been blocked by Trump nominees, according to the Post analysis, which examined 67 federal cases related to voting in the 2020 election cycle.

Voting-rights advocates challenging restrictions had a series of successes at the district court level - only to see those wins frequently reversed by the appeals courts. Especially on the regional circuit courts, which typically review district court decisions sitting in three-judge panels, those tapped by Trump overwhelmingly issued opinions rejecting efforts to loosen voting rules in response to the pandemic, the Post analysis found.

In the Texas case, a trio of judges nominated by Trump - Don Willett, James C. Ho and Stuart Kyle Duncan - reversed a more expansive district court ruling that would have allowed counties across the state to offer multiple drop-off locations for absentee ballots, instead of a single spot in each county as proscribed by Republican Gov. Greg Abbott. The governor's proclamation "does nothing to prevent Texans from mailing in their absentee ballots, as they have done in the past in election after election," Duncan wrote for the panel.

Minnesota voters now must return mail ballots by Tuesday to ensure they are counted after a divided appeals court this week cast doubt on a lower-court decision approving a state plan to allow ballots to be counted up to seven days after the election. The 2-1 majority opinion, hailed by the Trump campaign, included the president's nominee Judge L. Steven Grasz.

"The consequences of this order are not lost on us," according to the unsigned opinion joined by Grasz and Judge Bobby Shepherd, a nominee of President George W. Bush. "With that said, we conclude the challenges that will stem from this ruling are preferable to a post-election scenario where mail-in votes, received after the statutory deadline, are either intermingled with ballots received on time or invalidated without prior warning."

Judge Jane Kelly, a nominee of Obama, disagreed, saying the court's order would "cause voter confusion and undermine Minnesotans' confidence in the election process."

"At this point, it is simply too late for any absentee voter who has not yet mailed their ballot to do so with confidence that it will arrive by Election Day." The court is in effect telling voters, Kelly wrote, "that they should have mailed their ballots yesterday (or, more accurately, several days ago)."

Similarly, two Trump nominees formed the majority in a Georgia case blocking a three-day extension of the deadline for mail ballots to be counted. Judges Britt Grant and Barbara Lagoa, who was on Trump's shortlist to succeed the late Justice Ruth Bader Ginsburg, said in October that the District Court had "manufactured its own ballot deadline" after finding voters needed more time to cast absentee ballots in a pandemic.

"Voters must simply take reasonable steps and exert some effort to ensure that their ballots are submitted on time, whether through absentee or in-person voting. Contrary to the district court's conclusion, then, no one is "disenfranchised," wrote Grant, a former state Supreme Court judge and law clerk to Kavanaugh.

And the 2-1 decision, siding with the state and national Republican parties, took note of how the high court has handled such questions.

"That mantra has consistently pointed the Supreme Court in one direction - allowing the states to run their own elections," Grant wrote, concluding that. "COVID-19 has not put any gloss on the Constitution's demand that States-not federal courts-are in charge of setting those rules."

Judge Charles Wilson, a nominee of Clinton, dissented, writing that the District Court judge had properly ordered the state to accept ballots postmarked by Election Day but received up to three days later because "the public has an interest in ensuring votes are counted and that the right to vote is protected."

On the same court in September, a total of five Trump nominees were part of a six-judge majority that blocked felons in Florida from voting if they owe fines and fees, curtailing the reach of a state constitutional amendment that had the potential to reenfranchise an estimated 1.4 million people with felony convictions. The 6-4 ruling from the U.S. Court of Appeals for the 11th Circuit reversed a district court finding that the payment provision amounted to an unconstitutional poll tax that discriminated against poor former prisoners.

Voting rights advocates said the decision led to widespread confusion and fear among people with felony convictions that they would be prosecuted if they tried to register to vote, hampering their efforts to get more people on the voting rolls.

In the Wisconsin case, Judge Amy St. Eve, a Trump nominee, and Judge Frank Easterbrook, a nominee of President Ronald Reagan, reinstated the Election Day deadline for mail ballots to be returned that had been extended six days. The majority said federal courts should not alter voting rules so close to an election and that political officials, rather than judges, should decide whether a pandemic justifies such changes. The Republican National Committee, the state GOP and Republican-led legislature defended the original deadline, which was upheld by the Supreme Court.

Judge Ilana Rovner, a nominee of President George H.W. Bush, disagreed, calling the situation a "travesty" and warned that as a result of the court's decision "many thousands of Wisconsin citizens will lose their right to vote despite doing everything they reasonably can to exercise it."

"We cannot turn a blind eye to the present circumstances and treat this as an ordinary election," Rovner wrote in her dissent. "Today, in the midst of a pandemic and significantly slowed mail delivery, this court leaves voters to their own devices. Good luck and G-d bless, Wisconsin. You are going to need it."