I have written this piece for Slate. It begins:
President Donald Trump’s obsession with mail-in balloting reached the Supreme Court on Monday through a bonkers 5th Circuit opinion written by Trump appointee (and Trump Supreme Court auditioner) Andrew Oldham. Disagreeing with plain statutory text, statutory history, Supreme Court precedent, and the practice of many states, Judge Oldham’s opinion held that Mississippi violates federal law when it accepts ballots postmarked by Election Day that arrive within five days of the election. If the Supreme Court upholds the 5th Circuit in Watson v. Republican National Committee, 29 states and the District of Columbia would have to change their laws to require receipt of virtually all ballots by Election Day, aside from a small class of ballots including those from military and overseas voters….
We should look at the 5th Circuit in the broader context of a war on voting. It is unsurprising that Oldham reached such a voter-hostile and Trump-friendly conclusion. Back in 2021, in the midst of the COVID pandemic, Oldham dissented from a 5th Circuit decision on whether it violated federal law—not Texas law—for Harris County, Texas, to allow drive-through voting in 2020, something very much appreciated by those who did not want to get sick when voting.
That dissent, like his majority opinion in Watson, seems written for an audience of one, Donald Trump, who I expect will get at least one more Supreme Court appointment next summer when either Justice Samuel Alito (who Oldham clerked for) or Justice Clarence Thomas retires.
We have seen many Federalist Society and conservative judges hold the line on blatantly political and unsupported arguments advanced by Trump and his allies to make voting harder and election subversion easier. Judge Oldham’s opinion shows that not only will some judges not hold that line, they are ready to be partners with Trump and his allies in a new wave of voter suppression.