About two weeks in the past, the whole United States Court docket of Appeals for the Fifth Circuit, by a 10-5 vote, declined to exercise en banc review of an vital 2024 voting-rights case, Republican National Committee v. Wetzel. Final fall, as the 2 of us defined in a November 1, 2024 Verdict article (which in flip hyperlinks to earlier analyses here and here of the problems offered), a three-judge panel of the Fifth Circuit held invalid a Mississippi statute that allows the counting of ballots that arrive at election places of work by mail after Election Day—as much as 5 enterprise days after—as long as the ballots are postmarked on or earlier than Election Day itself. In line with the three-judge ruling, the Mississippi statute conflicted with, and was thus preempted by, federal legislation. Beneath that panel ruling, Congress’s designation in federal statutes (2 U.S.C. § 7 and three U.S.C. § 1) of a single federal “Election Day” signifies that regardless that counting of votes could take many extra days, by the tip of that Election Day: (1) all votes have to be forged; (2) a voter’s poll will not be forged and is thus not ultimate till “the State takes custody of it;” and (3) “custody” means precise arrival on the election officers’ places of work.
As we defined in nice element in our earlier writings, we expect the Fifth Circuit panel’s reasoning is skinny and unconvincing. Particularly, the panel gives no good reply to the query why, notably on condition that (as one in all us has discussed in a recent law review article) most ballots are, on account of permissible early voting, now submitted earlier than moderately than on Election Day, states can’t take into account ballots which are en route by means of the U.S. mail (or different safe programs) to be within the states’ custody (akin to the mailbox rule for contracts and the submitting of tax returns), simply as ballots positioned in a safe state dropbox by midnight would plainly be within the state’s custody even when the dropbox will not be truly emptied till the day after Election Day. We see no proof that Congress’s enactments deny states this flexibility, particularly since statutes like that of Mississippi are widespread and have been in impact for a very long time and Congress hasn’t sought to change state practices on this regard. In mild of the widely strong dedication to state, moderately than federal, administration of elections, even federal elections, as mirrored in Articles I and II of the Structure, we’re far much less inclined than was the Fifth Circuit panel to displace long-standing state practices that don’t appear to danger fraud or corruption of elections. (One of many Fifth Circuit opinions dissenting from the denial of en banc overview makes comparable factors.)
We wrote final fall that the reasoning of the Fifth Circuit panel ruling, if embraced by different circuits, would instantly have an effect on greater than a dozen states, and for that cause we expect the Supreme Court docket ought to undoubtedly be excited about resolving earlier than the autumn of 2026 the permissibility of counting federal ballots postmarked by Election Day however arriving a number of days thereafter. Now that the Fifth Circuit, in denying en banc overview, is completed with the case, will probably be attention-grabbing to see whether or not the Mississippi state defendants search, and the Supreme Court docket grants, overview within the Wetzel matter.
However even when the Court docket doesn’t take up the Wetzel case, Supreme Court docket overview of the underlying subject—that’s, the interpretation of federal legislation designating a federal Election Day—is kind of possible within the foreseeable future on account of one other, associated growth final week: President Trump’s Executive Order regarding state administration of federal elections. Entitled “Preserving and Defending the Integrity of American Elections,” the Order, dated March 25, 2025, has gotten a variety of media consideration for its provisions that purport to “Enforc[e] the Citizenship Requirement for Federal Elections” by requiring individuals who register to vote to supply sure types of identification reminiscent of a U.S. Passport or REAL ID card. However a much less publicized set of provisions within the Order relate to the receipt of ballots on Election Day. The Order reads 2 U.S.C. § 7 and three U.S.C. § 1 as “requir[ing] that votes be forged and obtained by the election date established in legislation” (emphasis added). On this respect, the Order tracks, and really cites to, the Fifth Circuit panel ruling from final 12 months. The Order goes on to say that “[i]t is the coverage of [this] Administration to implement [both directly and by means of withholding federal funding] these statutes . . . [even though] quite a few states fail to adjust to these legal guidelines by counting ballots obtained after Election Day. That is like permitting individuals who arrive 3 days after Election Day, maybe after a winner has been declared, to voting in individual at a former voting precinct, which might be absurd.” We agree there may be absurdity afoot right here, nevertheless it lies within the Order’s equation of casting a postmarked poll by election evening and casting an in-person poll three days later. No matter one thinks of the that means of federal statutes and the arguments in favor of and towards the Fifth Circuit’s holding, these two issues aren’t remotely the identical. Not even the Fifth Circuit made such an assertion.
Provided that many different states (moreover Mississippi) are instantly affected by the Govt Order, we anticipate there to be a lot litigation over the Order’s legality. Among the litigation will give attention to the proof-of-citizenship provisions, and a few on the President’s energy to impose funding circumstances. However some may even give attention to exactly how Congress’s designation of a federal Election Day does or doesn’t restrict states’ flexibility with regard to the counting of ballots which are postmarked by midnight however collected shortly thereafter. And when, as we anticipate, the Supreme Court docket takes up this subject, we hope the Justices will rigorously take into account the arguments now we have superior in our prior writings.
One of many Fifth Circuit judges who voted towards rehearing en banc, Decide James Ho, could not discover our arguments price analyzing. Decide Ho (who was additionally on the unique three-judge panel that determined Wetzel) wrote an opinion concurring within the denial of rehearing en banc through which he took direct goal at a dissenting opinion by his Fifth Circuit colleague Decide Stephen Higginson. Decide Higginson steered that one cause to be open to en banc overview was a critique of the three-judge panel resolution from a “topflight” non-party lawyer, whose views Decide Higginson discovered useful. Quoting former Chief Justice William Rehnquist, Decide Higginson noticed that “‘knowledgeable criticism’ of courtroom opinions from attorneys unaffiliated with the events is in [the] important custom . . . . ‘of public engagement with the courts that ends in a better-informed coverage and a extra strong democracy.’” Decide Ho, against this, discovered the enter of distinguished exterior attorneys to be much less related due to his perception that such enter “could mirror the institutional bias at most of the nation’s largest legislation corporations.” Decide Ho noticed that “main legislation corporations constantly favor one aspect in extremely charged disputes like this one . . . and are [thus] falling in need of ‘the nice traditions of the career.’” On this regard, Decide Ho is echoing, and certain associating himself with, the actions of the Trump administration in seeking to exclude certain large law firms from doing enterprise with the federal authorities (and even from accessing federal buildings) on account of previous positions these corporations have advocated in representing shoppers towards President Trump or his pursuits.
Maybe Decide Ho would discover the 2 of us, as members of the authorized academy, to be affected by “institutional bias.” We absolutely acknowledge (as every of us has defined in depth, here and here) that many teachers lately, on each ends of the spectrum, are means too partisan of their scholarship, and that this creates an issue not only for the authorized academy however for the bench that wants our enter. The 2 of us attempt to keep away from falling into that pitfall; every of us has expressed quite a lot of constitutional views, lots of which may be regarded as “conservative” and lots of of which usually tend to be thought-about “liberal,” on subjects reminiscent of federalism, separation of powers, particular person rights, and strategies of constitutional interpretation. However as we proceed to attempt to be straight shooters—trustworthy brokers—we will’t assist however discover that Decide Ho himself and his Fifth Circuit colleagues may look at their very own institutional open-mindedness. All ten of the judges who voted to disclaim rehearing en banc (in an undeniably vital case) are Republican appointees and all 5 who voted in favor of rehearing are Democratic appointees. We don’t share the view of some commentators that judges commonly determine circumstances primarily based totally on their very own coverage preferences. However regardless of the cause for the 10-5 cut up, it absolutely dangers an impression of partisanship. The fair-minded critic may conclude, Fifth Circuit Court docket of Appeals, that in relation to institutional bias, the biblical recommendation Jesus provided—“Doctor, heal thyself!”—is one thing that judges, too, ought to heed.
