American democracy has never been in a particularly healthy place, so it did not come as much of a surprise when, as early voting for the 2020 election kicked off this week, disastrous accounts began to roll in: In California, the state’s Republican Party placed more than 50 deceptive ballot boxes—many labeled as “official”—in Los Angeles, Fresno, and Orange counties. (The party has pledged to continue the practice despite a cease and desist order.) In Georgia, singer Johnta Austin recorded himself and his fellow voters as they waited in line for a stunning 11 hours to fill out their ballots in person. Elsewhere in the country, ballots are going out without return envelopes and with the wrong names attached.
And on late Monday night, a three-judge panel for the Fifth Circuit Court of Appeals issued a unanimous ruling that held that the one-per-county limit placed on absentee ballot drop-off locations by Republican Texas Governor Greg Abbott was, in fact, legal. Civil rights groups and members of the state’s Democratic Party, including both the Mexican-American and Black legislative caucuses, had sued the state, arguing that Abbott’s proclamation would make it overly difficult and dangerous for some voters, especially in larger districts, to drop off their ballots. The court dismissed these concerns and framed Abbott’s rule instead as a form of voter access expansion, with Judge Kyle Duncan writing, “The fact that this expansion is not as broad as Plaintiffs would wish does not mean that it has illegally limited their voting rights.”
The three judges who ruled on the case—Duncan, James Ho, and Don Willett—have one thing in common: They were all among the hundreds of judges nominated by President Trump and shepherded through the Senate confirmation process by Mitch McConnell.
What the 2020 election has accentuated most is that the long-term goal for the GOP is not to test how far it can go to restrict voter access within the bounds of United States law. Instead, Republicans hope to rewrite these laws entirely to enforce generations of minoritarian rule. They have spent the last decade wielding their power within state governments with this aim in mind, and while they were often blocked by federal courts, they were not deterred. They just turned their focus to the bench the moment Trump took the presidency. It was an investment that is now paying off.
In Texas, this means that vulnerable voters will be left in the lurch. In a state where Latinx residents make up 40 percent of the population but, as of September, 56.1 percent of all Covid-19 deaths, these same voters will now be expected to either vote in person or file their ballots at a single location—both options standing out as an unnecessary health risk. The alternative could be to participate through mail-in voting, but Abbott has so far refused to expand the state’s vote-by-mail deadlines or logistical infrastructure. The plaintiffs in the case will now have to either accept the one-box-per-county rule or appeal the full Fifth Circuit panel of judges to hear the case—an unlikely prospect given the court’s conservative title.
The GOP’s focus on the courts is only natural given the past decade. Following the 2010 midterms, the party stormed to majorities in dozens of state legislatures across the country. In some of these states, like North Carolina, Republicans claimed super-majorities, which rendered vetoes from Democratic governors worthless and essentially granted them carte blanches to pass any law they like.
Leaning fully into this power, Republicans, again like those in the North Carolina General Assembly, spent the following years gerrymandering districts, rolling back early voting, and requiring voters to present an ID to fill out their ballot. But time after time, Republicans were stymied by the courts. As a result, the North Carolina maps were ordered to be redrawn and the voter ID law, passed in 2013, is still sitting on the shelf, waiting for a final ruling before it can join the 36 other states with similar laws already in place.
The moment that Trump was elected to office, McConnell made it his mission to stuff the federal courts with as many like-minded judges as possible. These judges, like recent D.C. Circuit nominee Justin Walker, oftentimes fail to carry the same level of professional experience or expertise as their counterparts or predecessors. Their qualifications are more tailored around whether their ideology aligns with the current ideology of the Republican Party. If the answer is yes, then a nomination has usually been quick to follow.
A judiciary stuffed with more than 200 Trump appointees—who account for nearly a quarter of all active federal judges—is one that no longer stands as the last line between extremist legislatures but encourages and upholds their attempts at dismantling equitable voter access. It’s how you get a ruling like the one from the Fifth Circuit, which reasoned that a single drop-off box in a county of four million people and one in a county of 400 in fact offers a level playing field for all voters.
The courts were always McConnell’s greatest insurance policy to ensure that the last decade of conservative rule is not instantly washed away by a new administration. Rulings like these, and the judges issuing them, will only appear more frequently in the coming years, until the courts are entirely recast by a different administration and Senate, or until McConnell’s dream comes true and the pool of voters with the ability to actually cast a ballot is fully whittled down to just the Republican electorate.
