By 10-5 vote, 5th Circuit opts not to take en banc decision that found Mississippi absentee ballots must be returned by Election Day to count in federal races

absentee ballots, court decisions, election administration

The opinions in the decision to deny the en banc petition are here, in RNC v. Wetzel. From the intro of the original panel decision, as a refresher of the issue:

Congress statutorily designated a singular “day for the election” of members of Congress and the appointment of presidential electors. Text, precedent, and historical practice confirm this “day for the election” is the day by which ballots must be both cast by voters and received by state officials. Because Mississippi’s statute allows ballot receipt up to five days after the federal election day, it is preempted by federal law. We reverse the district court’s contrary judgment and remand for further proceedings.

The principal dissent in the en banc decision is by Judge Graves:

I would grant the petition for rehearing. At a minimum, this case presents a question of exceptional importance: whether federal law prohibits states from counting valid ballots that are timely cast and received by election officials within a time period designated by state law. The substantial, if not overwhelming, weight of authority—including dictionary definitions, federal and state caselaw, and legislative history—counsels against the preemptive interpretation that the panel adopted. Moreover, the opinion conflicts with the tradition that forms the bedrock for our nation’s governance—federalism—which vests states with substantial discretion to regulate the intricacies of federal elections. Simply stated, federal law does not mandate that ballots be received by state officials before Election Day’s conclusion, and the panel’s contrary holding is erroneous.

It’s worth noting this decision formally only binds federal courts deciding cases in Mississippi, Texas, and Louisiana, but it could obviously influence how other courts think about the issue in the rest of the country (especially as far more states have late-arriving absentee ballot deadlines), and it may affect the strategy of litigants deciding whether to take the case to the Supreme Court.

Speaking of influence, here’s the lede from the San Diego Union-Tribune on another lawsuit: “Issa sues to block California from accepting mail-in ballots after Election Day.”

(It’s also worth noting this is a federal statute that sets Election Day for federal offices.)

Earlier ELB coverage is here (my look at questions about a private right of action), here (Rick H.’s take), here (Chris Geidner’s take), here (Justin Levitt’s perspective ahead of 2024), and here (on Adam Unikowsky’s take).

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“U.S. Department of Justice Dismisses Biden-Era Lawsuit Against Alabama in order to have more Secure Elections”

Department of Justice, voter registration

Press release from the Department of Justice:

Today, the U.S. Department of Justice’s Civil Rights Division filed a dismissal of the complaint in United States v. Alabama. The previous administration had filed the action in 2024 after the Secretary of State in Alabama had taken steps to remove ineligible alien voters from their voter rolls in the run-up to the 2024 presidential election.   

“States are required to maintain accurate voting rolls and remove ineligible voters,” said Acting Assistant Attorney General Mac Warner of the Justice Department’s Civil Rights Division. “This Administration supports the efforts of states like Alabama that engage in voting security measures that ensure only citizens are voting in our elections. We are dismissing this case from the prior Administration to permit Alabama the time and space to develop a legal, efficient, and effective process to remove noncitizens from their voting roll and secure the vote for their citizens in upcoming elections.”

In mid-August 2025, Alabama Secretary of State Wes Allen announced a “process to remove non-citizens registered to vote in Alabama,” citing over 3,200 people who he said registered to vote and were not U.S. citizens. The stipulated notice of dismissal filed today ends the lawsuit brought by the prior administration challenging that procedure. Because of that lawsuit, Alabama was forced to cease its process in 2024.

By ending the Department of Justice’s action against them, Alabama should now have the opportunity develop a new process to ensure that ineligible voters are removed from its voter rolls, as it is required to do under Section 8 of the NVRA.

Earlier coverage of the DOJ’s action again Alabama in September 2024 is here.

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11th Circuit finds Florida’s closed primary statute withstands constitutional scrutiny

court decisions

Three opinions from three judges in Poelle v. Florida Secretary of State. From the majority opinion by Judge Rosenbaum:

Michael J. Polelle is a voter in Sarasota County, Florida, who has not registered with a political party. As a result, Florida’s closed system of primary elections prevents him from participating in any political party’s primary.

At the same time, though, the Republican primary has determined the outcome of most Sarasota County elections since the 1960s. So Polelle filed suit claiming Florida’s law puts him to an unconstitutional “Hobson’s choice,” requiring that he either forfeit his right to a meaningful vote or forfeit his right not to associate with political groups and messages. The district court dismissed Polelle’s lawsuit because it concluded he has not suffered an injury that gives him standing to sue in the federal courts and, alternatively, because he failed to state a claim for relief on the merits.

After careful consideration, and with the benefit of oral argument, we agree with the district court’s decision to dismiss Polelle’s case. But we do so after reaching the merits. Polelle has adequately alleged that he suffered an injury in fact, traceable to Defendant-Appellee Sarasota County Supervisor of Elections Ron Turner and redressable by the federal courts. As Polelle points out, he has both the right to a meaningful vote and the right not to associate with certain political groups and messages. And Florida’s closed primary burdens those rights.

Continue reading 11th Circuit finds Florida’s closed primary statute withstands constitutional scrutiny →
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“Judges Become Targets in Combative Political Environment; Early court rulings against Trump provoke fury from some of president’s supporters”

authoritarian threats in US, Uncategorized

Jess Bravin for the WSJ:

Having taken the White House and captured the Congress, President Trump’s movement is unleashing its fury on the one branch of government it doesn’t fully control: the judiciary.

As more judges have blocked or slowed some of Trump’s initiatives, the president’s surrogates have been increasingly strident in their responses, casting adverse rulings as not only incorrect but also illegitimate.  

“Judges targeting President Trump are political hacks and their decisions belong in my SHREDDER,” Rep. Andy Ogles (R., Tenn.) wrote Wednesday on X.

“This is a judicial power grab. Plain and simple,” Chad Mizelle, Attorney General Pam Bondi’s chief of staff, said in a social-media post Friday, after a pair of judges temporarily halted mass layoffs at government agencies.

Sen. Mike Lee (R., Utah), who has called for impeaching “corrupt judges,” reposted a photo Thursday of U.S. District Judge Beryl Howell, who blocked sanctions Trump imposed on a Democratic-leaning law firm, Perkins Coie. Lee also has proposed legislation to limit federal courts’ power to rule on administration policies.

Perhaps the most aggressive has been Elon Musk, the president’s surrogate and billionaire benefactor, who has accused judges of interfering with the democratic process. “The only way to restore rule of the people in America is to impeach judges,” he said in one post. 

Trump’s aggressive assertions of presidential power, and the speed with which he has imposed his agenda, have put judges on the hot seat. More than 100 lawsuits challenging Trump initiatives are moving through the courts. Adding to the tensions, Trump’s challengers frequently have asked judges to temporarily block his moves at the outset, to avert what they have argued are irreparable harms they would suffer while their cases spend months or years working through the legal system.

The attacks haven’t distinguished between judges appointed by Democratic presidents or Republican ones. Instead, the central criterion: whether a judge has been an impediment to Trump, even at an early stage of a case while legal arguments are far from a final resolution.

Ogles filed impeachment papers against Judge John Bates, a George W. Bush appointee in Washington who last month ordered the Trump administration to restore government health websites and data sets that had been modified or taken down in an effort to scrub references to “gender ideology.”

Justice Amy Coney Barrett, the Trump appointee celebrated for cementing conservative control of the Supreme Court, recently found herself an unlikely target of the MAGA movement. She joined Chief Justice John Roberts and three liberal justices in a 5-4 vote not to intervene at Trump’s behest in lower-court litigation over foreign-aid funding. 

“Amy Coney Barrett shows the danger of Republican DEI,” right-wing personality Jack Posobiec told his 3.1 million followers on X.

Judges say the blowback won’t influence their rulings. But they fear that the messages from on high are whipping up threats and potentially violence against judges and their families. …

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“Bill Cotterell: Florida 2000 — Now that was an election”

Bush v. Gore reflections

Bill Cotterell column in the Tallahassee Democrat:

Cops, politicians and journalists sometimes use a cliche — “You can’t make this stuff up” — when they run into some novel or startling plot twists or game-changing surprises in events they’re describing.

It’s usually a bit of an exaggeration. But once, not long ago, Tallahassee was the center of a high-stakes legal drama, political struggle and media circus that defied description. And the weird thing was that everybody knew how it would end but couldn’t say so with any confidence.

A few blocks downhill from the towering state Capitol, where it all happened, Florida State University’s law school recently held a two-day conference about Bush vs. Gore. That was the case that captivated the nation for 36 days after the 2000 presidential election.

Of course, Republican George W. Bush defeated Democrat Al Gore by 537 votes out of more than 6 million cast statewide — and won the presidency by locking up Florida’s 25 electoral votes.

Faculty Director of the Election Law Center, Professor Michael Morley, introduces the Panel Discussion Bush v. Gore, the Right to Vote, and Election Administration on Saturday morning during the Election Law Conference.

FSU’s 25th anniversary conference brought together many of the lawyers who argued for Gore and Bush from circuit courts to the nation’s highest tribunal. Also, it included state and county elections officers who labored with Florida’s haphazard voting systems, campaign consultants on both sides and many of the political junkies infesting Tallahassee. There was also a sprinkling of fresh-faced students who weren’t born when the presidency was decided by the men and women presenting orderly, scholarly panel discussions.

The dignified academic event focused on stuff like deadlines for legal filings, the official distinction between an election “challenge” and election “contest,” the criteria for determining voter intent when a ballot was not clearly marked and the certification of results. But such arcane details couldn’t capture the rollicking adventure of the time itself. 

Laws are made with the expectation that things work well. This election didn’t. …

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“Ohio AG Must Approve Qualified Immunity Measure Summary”

direct democracy

Bloomberg Law:

Ohio’s attorney general must approve a desired summary of a ballot measure that would make it easier to sue police and government officials, a federal judge ruled Friday.

The enforcement by Attorney General Dave Yost (R) enforcement of a law that says summaries of proposed constitutional amendments must be “fair and truthful” likely violated the Ohio Coalition to End Qualified Immunity’s free-speech rights, Senior Judge James L. Graham of the US District Court for the Southern District of Ohio said.

The judge’s preliminary injunction ordered Yost to immediately submit the disputed summary to the Ohio Ballot Board for review, the next step before the group can collect the signatures necessary to place its measure on this year’s ballot. The burdens imposed Yost’s enforcement of the law, which includes eight summary rejections, don’t justify the imposition on the group’s free-speech rights, Graham said.

“As applied, the Attorney General’s denials of plaintiffs’ summaries reached a level of hypercorrectness which went beyond ensuring that citizens could ascertain what they were being asked to support,” Graham wrote, adding that Yost “has played the role of an antagonistic copyeditor, striking plaintiffs’ work on technical grounds.”…

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“Trump calls his opponents ‘scum’ and lawbreakers in bellicose speech at Justice Department”

authoritarian threats in US, Department of Justice
Politico: President Donald Trump on Friday walked into the Department of Justice and labeled his courtroom opponents “scum,” judges “corrupt” and the prosecutors who investigated him “deranged.” With the DOJ logo directly behind him, Trump called his political opponents lawbreakers… Continue reading