As voting is already under way across America, so are Republican efforts to limit voting. And Donald Trump’s party is likely to see more favorable rulings in election-related disputes reaching the federal appeals courts given that they’re now filled with the president’s appointees. Trump has appointed more judges to the appeals courts—the last stop for federal cases before the Supreme Court and where the majority of federal litigation ends—than any other president during the first three years in office, the New York Times reported in March. In looking at a series of recent voting-rights rulings at the appellate level, the Times now find that the conservative makeup of the courts could help Trump’s reelection chances.
“There has been a very significant number of federal voting rights victories across the country and those have in the last week or two—many if not most—been stayed by appellate courts,” said Wendy Weiser, who directs the Democracy Program at the Brennan Center for Justice at NYU School of Law. On Saturday, Republican-appointed appeals court judges in Michigan blocked a two-week absentee ballot extension that had been ordered by a lower court ruling which found “unrefuted evidence” of mail delivery problems caused by the pandemic. Appeals courts in Wisconsin, another battleground state, and Indiana also ruled against absentee ballot extensions in cases earlier this month.
Not only can these rulings keep people from voting, but they’re also creating confusion at the eleventh hour, as people are already voting or preparing to vote by mail or in person. In Texas, for example, an appellate panel of three Trump-appointed judges ruled in favor of Governor Greg Abbott’s order limiting counties to a single drop-off site, a move the Republican official claimed would “stop attempts at illegal voting” despite there being no evidence of large-scale voter fraud. (Democrats called the policy change a last-ditch voter suppression attempt by ordering multiple drop-off locations across the state, opened to try to make voting easier during the pandemic, to close.) Yet a few days after the ruling, the Times notes, a state judge ruled against Abbott’s directive, “effectively countermanding the federal appeals decision and leaving the matter unclear before the election next month.”
Such legal disputes are sure to sow confusion in the campaign’s waning weeks—which may benefit Trump, who has repeatedly undermined the integrity of the election. For months, the president has falsely claimed that voting by mail leads to widespread fraud—except, apparently, when he and his family do it—and appears likely to dismiss election results that aren’t in his favor. “The more uncertainty that the courts are injecting into the process right now, the greater the likelihood there will be postelection litigation,” Nathaniel Persily, a professor at Stanford’s law school, told the Times. And if election-related legal challenges reach the Supreme Court, as Trump has predicted a number of times, the president would likely have Judge Amy Coney Barrett on the bench. During last week’s confirmation hearing, she refused to say whether she would recuse herself from such disputes. Trump, however, has made it clear how he expects her to rule if the case comes before the high court. “I think having a four-four situation is not a good situation,” he said last month, adding that “just in case it would be more political than it should be, I think it’s very important to have a ninth justice.”
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