On Friday, the United States Court of Appeals for the Fifth Circuit handed down an astoundingly poorly reasoned opinion claiming it is illegal for a state to count a ballot mailed before Election Day but that arrives for counting afterward. Eighteen states, plus the District of Columbia, currently count at least some late-arriving ballots.
The Trumpiest judges in America want to toss out thousands of lawfully cast ballots
It’s probably not going to work, though.
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.
The opinion in Republican National Committee v. Wetzel is difficult to parse. Important sections of it appear to be missing several paragraphs, as the decision makes logical leaps without explaining key concepts. It reaches some of its central conclusions without citing a legal authority — whether statute, case law, or otherwise — to support those conclusions. If this opinion were submitted as part of a law school exam, the student would risk a failing grade.
Any decision that would toss out lawfully cast ballots is worrisome, especially in a nation that tends to hold very close presidential elections, as the 2024 election seems on track to be. Because Democrats are expected to cast mail-in ballots more often than Republicans this year, if the Fifth Circuit’s decision were in effect, it could hand states that Democratic nominee Kamala Harris won to Republican Donald Trump.
That said, the one good thing about the Wetzel opinion is that the Fifth Circuit didn’t give it immediate effect, so it is very unlikely to impact the current election. Still, there are two good reasons to be troubled that a federal appeals court handed down such a cocamamie decision.
One, is that Wetzel is emblematic of the many bad election decisions we can expect to be handed down in the coming days. Elections always bring litigation, as the two parties jockey for legal advantage in state and federal court. This time around, however, the federal courts are controlled by Republicans — some of whom, including the judges on the Wetzel case — have a strong reputation for partisanship.
And that brings us to the second reason to worry about Wetzel. The three judges involved in the case, Kyle Duncan, James Ho, and Andy Oldham, are widely viewed as potential Supreme Court nominees if Trump becomes president again — certainly, the three of them have all auditioned very hard for such a promotion.
So, while it’s unlikely that the current Supreme Court will endorse Oldham’s majority opinion in Wetzel, his work is representative of the type of legal reasoning that could come from the Court if Trump were to fill it with MAGA loyalists who will sign onto virtually anything the Republican Party wants.
The Fifth Circuit has a well-deserved reputation for handing down outlandishly reasoned opinions that reach far-right conclusions, and that are frequently reversed even by the current GOP-controlled Supreme Court. The Fifth Circuit has become a popular place for far-right lawyers who lose at trial to appeal their cases. The Fifth Circuit hears nearly all federal appeals that originate from Louisiana, Mississippi, or Texas, and MAGA-aligned judges like Duncan, Ho, and Oldham control a majority of the court’s active judgeships.
Of course, there’s always some risk that this Supreme Court, which has a 6-3 Republican majority, could affirm even the worst decisions from the Fifth Circuit. This is, after all, the same Supreme Court that recently held that Trump was allowed to commit crimes while in office. But Oldham’s Wetzel’s opinion is so poorly reasoned, and the Fifth Circuit’s record before the Supreme Court is so abysmal, it’s hard to imagine more than three of the current justices endorsing Oldham’s crusade against late-arriving ballots.
Every presidential election brings a wave of lawsuits, and some of them are potentially quite worrying. For example, I’m keeping a close eye on a case seeking to disenfranchise several thousand voters in the key swing state of Pennsylvania.
But for every case that’s worth stressing over, there are likely to be several decisions like Wetzel, which are unlikely to amount to anything unless Trump gets to start filling Supreme Court seats with judges like Oldham. If one were to worry about every single pro-Republican court decision that we are likely to see in the next several weeks, it would be easy to drive yourself mad — and for no good reason.
The Wetzel opinion is really, really, really, bad
Oldham’s Wetzel opinion is only 22 pages, but it reads like it is much longer because it is so disjointed — switching topics so frequently it’s hard to keep track of his argument.
That said, the crux of his opinion is that an 1872 law providing that federal elections shall take place on “the Tuesday next after the 1st Monday in November, in every even numbered year” prohibits states from counting any ballots that arrive after this day — and that somehow no one noticed this fact for the last 152 years.
Oldham’s analysis on several key parts of his argument is quite brief. At one point, he cites a Supreme Court opinion stating that an election cannot take place without some kind of action by government officials. He then argues it somehow follows that a ballot is not officially “cast” until it arrives at the state election office. Here is the extent of Oldham’s argument on this point:
The State’s problem is that it thinks a ballot can be “cast” before it is received. What if a State changes its law to allow voters to mark their ballots. and place them in a drawer? Or what if a State allowed a voter to mark a ballot and then post a picture on social media? The hypotheticals are obviously absurd. But it should be equally obvious that a ballot is “cast” when the State takes custody of it.
As I said, the opinion is difficult to parse, but Oldham appears to be arguing that states cannot give any legal significance to the fact that a voter mailed their ballot before Election Day because, if states were allowed to do that, they may also allow voters to “cast” a ballot by stuffing it in the voter’s own dresser drawer.
Elsewhere in the opinion, Oldham points to the Supreme Court’s opinion in Foster v. Love (1997), which held that Louisiana could not effectively hold its congressional election in October. Early voting, absentee ballots, and other mechanisms that allow a voter to cast a ballot in October are allowed. But the final result of an election, according to Foster, “may not be consummated prior to federal election day.”
Fair enough, but Oldham’s opinion then leaps to the conclusion that an election is “consummated” when election officials know the specific number of ballots that will need to be counted to determine the winner, and that this consummation cannot occur after congressionally defined Election Day. He cites no legal sources whatsoever to support this proposition. Nor does he explain where this idea comes from. Oldham appears to have made it up.
I could go on, but what’s the point? Oldham’s opinion is so thinly reasoned on many of its essential points that I fear that, merely by trying to explain his reasoning, I’m placing far more flesh on the Fifth Circuit’s bare-bones argument than the opinion actually does.
That said, there is exactly one part of the Wetzel opinion that fans of the rule of law can look upon with relief. At the end of the opinion, the Fifth Circuit decides not to issue an immediate injunction preventing states from counting late-arriving ballots (and even if it did issue such an order, it would only apply in Mississippi, which is the sole state before the Fifth Circuit in this case). Instead, Oldham sends the case back down to a trial court “for further proceedings to fashion appropriate relief.”
As a practical matter, that means that this decision will almost certainly have no impact on the 2024 election. It could hypothetically be affirmed by the Supreme Court, and thus would govern all future elections in all 50 states, but that seems unlikely unless someone is actually able to come up with a legal argument that supports Oldham’s conclusion.
Still, while it’s hard to imagine even this Supreme Court embracing Oldham’s swiss-cheese-like reasoning, the case does carry a warning about the 2024 election. Duncan, Ho, and Oldham are all widely considered to be part of Trump’s short list of potential Supreme Court nominees, and all three of them have certainly auditioned for the part.
If Trump wins, in other words, weakly reasoned opinions tossing out ballots for no particular reason could easily become the norm.
