Let me start by saying you’re likely to see quite a few of this type of article over the next few weeks. There have been a bunch of district court decisions about election laws recently. Most are ripe for reversal by the various Circuit Courts. So instead of writing separate articles for each, I’ll do a Round-up every few days.
Let’s start in Texas, where US district court judge Marina Garcia Marmolejo, an Obama appointee, ordered the restoration of “party line voting”.
This one requires a bit of history to fully understand. Back in 2017 the Texas legislature approved a bill that was signed by the governor ending straight ticket voting. At the time, Texas was one of only 7 states to allow that practice. The law was set to go into effect for this election cycle.
That is until Judge Marmolejo stepped in. After initially deciding against the plaintiffs in June, she issued the order in mid- September after an amended complaint was filed.
Today the 5th Circuit Court weighed in. Not only did they reverse Marmolejo’s decision, they took a swipe at her personally. From the decision (bolding mine):
The Supreme Court has “repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.” Republican Nat’l Comm. v. Democratic Nat’l Comm., — U.S. —, 140 S. Ct. 1205, 1207 (2020). Most recently … the Court granted an application for stay of a district court’s preliminary injunction to the extent that it changed election rules five days before an election because “[b]y changing the election rules so close to the election date . . . the District Court contravened this Court’s precedents and erred by ordering such relief.” Time and time again over the past several years, the Supreme Court has stayed lower court orders that change election rules on the eve of an election….
The principle from these cases is clear: court changes of election laws close in time to the election are strongly disfavored. Bearing this principle in mind, our court previously has stayed orders changing election laws when an election is imminent…. Today too, in staying a preliminary injunction that would change election laws eighteen days before early voting begins, we recognize the value of preserving the status quo in a voting case on the eve of an election, and we find that the traditional factors for granting a stay favor granting one here..
The district court states expressly in its order that “Plaintiffs . . . raise a challenge seeking to maintain the status quo.” On this mistaken premise, the district court writes that “the requested injunction would not impose such an onerous burden on election officials and merely allows a century-old practice to remain in place for one more election.” The district court repeats this mistake over and over, stating, for instance, that the injunction prevents “eliminating a practice that Texan voters have been accustomed to for 100 years” and enables “[a]dministering in-person voting the same way it has been administered for almost 100 years . . . .” The district court ignores the fact that in June 2017, a majority of the Texas legislature—composed of officials elected by Texan voters to represent them—passed a law that ended the long practice of straight-ticket voting. That law became the new “status quo,” and Plaintiffs had plenty of time over the past three years to challenge it. It is the district court’s eleventh-hour injunction that alters the status quo, not the Texas legislature’s 2017 duly enacted law. The fact that the status quo of Texas election law just prior to the district court issued the injunction was to not allow straight-ticket voting is demonstrated by the fact that Texas election officials, having had three years to adjust to HB 25, printed and mailed thousands of ballots without a straight-ticket voting option for the upcoming general election.
You’ll start to notice a pattern with these decisions. First, there’s clear precedent that the last minute changes by judges get overturned with shocking regularity. And second, the higher courts take a dim view of an unexpected judge substituting their judgement for that of the people’s elected representatives.
Next up we take a look at a case in Indiana. There, a district court judge declined to change election laws and the 7th Circuit Court upheld his decision.
The Indiana Election Commission responded to the difficulties of voting during the COVID-19 pandemic by extending the absentee-voting privileges to all registered and qualified Indiana voters for the June primary, but the Commission did not renew its order for the general election this November. So of course the Democrats sued.
When the district court judge ruled against them, the plaintiffs appealed to the 7th Circuit. And as I already noted, they upheld the verdict handed down by the District Judge. You can read the full decision here.
Our last case for today comes out of Wisconsin. This one is a little convoluted, so stay with me.
On September 21 Federal District Court Judge William Conley ordered that the Nov. 3 election day deadline for receipt of Wisconsin absentee ballots be extended to Nov. 9.
As for the requests for preliminary relief, election workers’ and voters’ experiences during Wisconsin’s primary election in April, which took place at the outset of the COVID19 crisis, have convinced the court that some, limited relief from statutory deadlines for mail-in registration and absentee voting is again necessary to avoid an untenable impingement on Wisconsin citizens’ right to vote, including the near certainty of disenfranchising tens of thousands of voters relying on the state’s absentee ballot process. Indeed, any objective view of the record before this court leads to the inevitable conclusion that: (1) an unprecedented number of absentee ballots, which turned the predominance of in-person voting on its head in April, will again overwhelm the WEC and local officials despite their best efforts to prepare; (2) but for an extension of the deadlines for registering to vote electronically and for receipt of absentee ballots, tens of thousands of Wisconsin voters would have been disenfranchised in April; and (3) absent similar relief, will be again in November.
So, the judge used “because it’s the right thing to do” as his legal basis for upending Wisconsin law. By the way, Conley is an Obama appointee, as are most of the other judges who’ve taken it upon themselves to rewrite election laws across the country.
Now back to the story. . .
The case was appealed to the 7th Circuit by the Wisconsin Legislature, the Wisconsin GOP, and the Republican National Committee. After initially issuing a stay, the 7th dismissed the appeal.
The dismissal of the appeal was based on a determination by the Seventh Circuit that none of the three parties had legal “standing” to file an appeal. The reasoning behind the lack of standing was a question about whether or not the legislature was able to represent the state in legal matters.
Well, according to the Wisconsin Supreme Court they are. The Wisconsin Supremes took the case up on an emergency basis and issued their decision yesterday. According to them the Wisconsin Legislature was authorized to act as a litigant on behalf of the State of Wisconsin when the issue in dispute was defending the validity of a law passed by the legislature.
So, that case heads back to the 7th Circuit for further adjudication. And given the short shrift activist judges have been given in regards to election laws, I don’t expect Conley’s decision to stand.