Over the last week, four conservative justices on the Supreme Court have signaled their desire to throw out mail ballots that arrive after Election Day. The court will remain deadlocked on this momentous issue—which could affect the outcome of countless races—until Amy Coney Barrett casts her first vote. And the lower courts are taking bets on which side she’ll take. On Thursday night, two far-right judges in the 8th U.S. Circuit Court of Appeals issued a lawless order claiming that Minnesota’s extension of the ballot deadline is likely unconstitutional. Their decision radiates partisan bias and flouts Supreme Court precedent, risking chaos and confusion by altering the rules of Minnesota’s election just five days before Nov. 3.
This is no fluke. It is the Barrett effect: Lower court judges are beginning to test the limits of the Supreme Court, trying to figure out how far right they can go without getting reversed. It is an especially dangerous time for federal courts to fabricate a new rule that prevents states from counting lawful ballots. But with no clear check to rein in the judiciary’s accelerating radicalism, some judges have decided it’s time to go all-in for Donald Trump and dare SCOTUS to stop them.
Thursday’s decision involved yet another dispute over state election law—a dispute that should never have landed in any federal court in the first place. A Minnesota statute requires voters to return mail ballots by Election Day. In May, a voting rights group sued the state to block this rule; it alleged that the deadline is unconstitutional in light of the pandemic, which has placed extraordinary pressure on the state’s vote-by-mail system. Minnesota Secretary of State Steve Simon chose not to fight the lawsuit. Instead, he entered into a consent decree (essentially a settlement) with the plaintiffs, approved by a state court, that halted enforcement of the Election Day deadline. The Minnesota Legislature has expressly authorized the secretary of state to “adopt alternative election procedures” whenever a law “cannot be implemented as a result” of a court order. Pursuant to that law, Simon extended the ballot deadline by one week and informed every voter that their ballot would be counted so long as it is mailed by Election Day and received by Nov. 10.
In September, James Carson and Eric Lucero sued in federal court to restore the Election Day deadline. Carson and Lucero will serve as “electors” for Donald Trump if he carries the state, meaning they will vote for him in the Electoral College. Backed by the Republican Party, they alleged that Simon violated the Constitution’s electors clause, which gives state legislatures power to determine the “manner” in which electors are “appointed.” By altering the ballot deadline, they claimed, Simon had usurped the Legislature’s constitutional prerogative.
On Oct. 11, U.S. District Judge Nancy Brasel, a Trump appointee, threw out the lawsuit, finding that both plaintiffs lacked standing to bring a case in the first place. Carson and Lucero have no right to represent the Legislature in court, nor do they speak for the Legislature, which did not object to the deadline extension. Their sheer displeasure at the prospect of Trump losing Minnesota because of late-arriving ballots, Brasel wrote, was not enough to confer standing.
By a 2–1 vote, a panel of judges for the 8th Circuit reversed Brasel. The majority consisted of Bobby Shepherd, a George W. Bush nominee, and L. Steven Grasz, a notoriously unqualified Trump nominee. Jane Kelly, Barack Obama’s lone nominee to the court, dissented. Shepherd and Grasz blew past the standing problem, holding that the plaintiffs would suffer “a concrete and particularized injury” if late-arriving ballots were counted because they would create an “inaccurate vote tally.” Shepherd and Grasz then ruled that the secretary of state likely exceeded his powers under state law and infringed on the Legislature’s constitutional rights by changing the deadline. They directed the state to segregate ballots that arrive after Nov. 3, and strongly implied that they will soon declare these “invalid” and order them “removed from vote totals.”
As election law expert and Slate contributor Rick Hasen wrote on Thursday, it is hard to know where to start with this outrageous opinion. Its chief argument is, put simply, a lie: The Supreme Court has never held that a state legislature has sole power over election law. Not once. To the contrary, the Supreme Court has explicitly ruled that other members of a state government can modify voting rules: a governor, for instance, or the people themselves through an initiative or referendum. Shepherd and Grasz’s assertion that a secretary of state (with approval from state courts) cannot exercise this power is flat-out wrong. The judges also overrode the Minnesota courts’ interpretation of Minnesota law, an appalling infringement on state sovereignty. It’s a black letter rule of constitutional law that state courts have final say over the meaning of state law. Shepherd and Grasz have no authority to overturn the Minnesota judiciary’s interpretation of the secretary of state’s powers.
The most cynical move here involves something called the Purcell principle. This principle counsels against federal courts changing state voting rules before an election, fearing they could confuse voters. Over the last few months, SCOTUS has repeatedly reversed lower courts that modify election law. Yet Shepherd and Grasz blew right past Purcell by insisting that it’s just more important to restore the Minnesota Legislature’s intent. Not the Legislature’s actual intent, which lets the secretary of state extend the deadline, but Shepherd and Grasz’s best guess as to what the legislature wanted. A guess that contradicts the Minnesota courts’ binding interpretation of the law.
This is not Purcell. It is not even judging. It is just politics, in its most undemocratic form: two federal judges telling state officials how to comply with state law, in direct defiance of Supreme Court precedent. The result will be exactly what Purcell guards against: Minnesota has already told voters that they can mail their ballots up until Nov. 3; election officials are now scrambling to tell voters that a court changed the rules at the last minute, and that they should have mailed back their ballots several days ago. Now it’s too late.
If Thursday’s decision wasn’t based on precedent, where did it come from? Shepherd and Grasz cited recent opinions by Justices Brett Kavanaugh and Neil Gorsuch—opinions that, themselves, were not rooted in precedent. Kavanaugh and Gorsuch, along with Justices Clarence Thomas and Samuel Alito, are on a mission. They are desperate to stop governors, secretaries of state, and election boards from protecting voters’ rights. But they failed to find a fifth vote when Chief Justice John Roberts balked at the notion of meddling in states’ election processes. If Minnesota appeals this decision to SCOTUS, it will give Barrett her first opportunity to side with this extremist bloc, forcing the state to throw away the thousands of ballots that arrive after Nov. 3.
It boils down to this: After diligently preparing to run a smooth election, Minnesota has been hijacked by two partisan judges on the basis of a radical theory never before endorsed by a court in history. Trump has appointed 220 federal judges, many of them ultraconservative and unqualified, hand-picked to implement Republican policies from the bench. If left unchecked, lower courts will continue pushing boundaries to see just how much lawlessness Thomas, Alito, Gorsuch, Kavanaugh, and Barrett will greenlight. Shepherd and Grasz are not an aberration. They are the future of the federal judiciary if Democrats do not combat Trump’s capture of the courts.