Fifth Circuit Cites A Ruling Calling Mail-In Ballots “Vital” To Falsely Claim They “Jeopardize Democracy Itself”

from the judicial-citation-laundering dept

You may have seen news of the recent Fifth Circuit decision, with an opinion written by Judge Andrew Oldham, overturning a lower court ruling, and reinstating highly questionable ID requirements for mail-in ballots. We can debate how this decision blends two great MAGA obsessions, mail-in ballots and voter ID (both overhyped panics designed to suppress the vote of people who are more likely to vote for Democrats), but I want to focus just on the opening lines of the opinion, and how it should be seen as judicial malpractice. Here’s how Oldham opened his ruling:

It has long been established that mail-in ballots are prone to fraud. See, e.g., Veasey v. Perry, 71 F. Supp. 3d 627, 676 (S.D. Tex. 2014) (“Mail-in ballots are not secure.”), aff’d in relevant part, 830 F.3d 216, 256 (5th Cir. 2016) (en banc). That is why voting by mail jeopardizes election integrity and democracy itself.

As the internet is known to say: citation fucking needed.

I went digging to understand the origins of that claim and what I found is that Judge Oldham (and his colleague, Judge James Ho) are willing to totally misrepresent things for partisan gain. There is a very out of context quote saying that “mail-in ballots are not secure” but in context it’s making a wholly different argument (one against voter-suppressing voter ID laws) and all the supporting documentation directly cuts against Oldham’s completely fabricated claim that “voting by mail jeopardizes election integrity and democracy itself.”

There is nothing that supports that claim. Not the rulings Oldham cites (which actually suggest mail-in ballots are vital!) nor the actual data.

You may recognize the name of Judge Andrew Oldham of the Fifth Circuit from that time he rewrote basically a century’s worth of First Amendment law to claim (incorrectly as the Supreme Court later made clear to him) that internet companies have no right to moderate content on their platforms. If you look, there is basically no MAGA culture war talking point that Oldham — a Federalist Society member, former Justice Alito clerk and Texas Deputy Solicitor General — won’t bend over backwards to justify.

You might also recognize the name of Judge James Ho, and credit where credit is due, Judge Ho beat Judge Oldham to the particular trick we’re talking about in an earlier ruling, in a separate appeal out of the very same consolidated challenge to S.B. 1.

“Mail-in ballots are not secure.” Veasey v. Perry, 71 F. Supp. 3d 627, 676 (S.D. Tex. 2014), aff’d in relevant part, 830 F.3d 216, 256 (5th Cir. 2016) (en banc) (crediting district court finding that “mail-in ballot fraud is a significant threat”).

Judge Ho is probably Oldham’s biggest competitor on the Fifth Circuit in attempting to suck up to Donald Trump in hopes of being the next Supreme Court nominee. So perhaps it’s no surprise that he used that same truncated “Mail-in ballots are not secure” line in pursuit of the same culture war MAGA voter suppression.

But they’re playing a nasty bit of judicial telephone, taking an original ruling that struck down an attempt by Republicans to suppress minority votes… and repurposing a quote totally out of context to now justify Republicans suppressing minority votes.

As noted in the citation, the original case goes back to a district court ruling in 2014, in Marc Veasey v. Rick Perry, who was governor of Texas at the time. At issue was a different Texas attempt at voter disenfranchisement, though also one involving voter ID laws. Texas had passed a burdensome voter ID law at the time, which very much appeared to be targeted at disenfranchising minority voters. Texas argued that the law was fine because even if you did not have access to a qualified ID that would allow the resident to vote in person, those individuals (if over the age of 65 or disabled) could still vote by mail.

Now, remember, back in 2014, this was before Donald Trump (and therefore all MAGA cultists) decided that mail-in ballots were evil. Remember, Donald Trump regularly votes by mail-in ballot. Back then, Texas defended restrictions on in-person voting by saying it’s no big deal because people can vote by mail. Now they’re seeking to restrict mail-in voting by claiming that it (the same thing they pushed for to defend the last law) jeopardizes democracy.

So the issue in the earlier case was only the validity of the voter ID law, and Texas’s defense that there was no burden on a class of voters without qualifying IDs, since they could turn to mail-in ballots. The court ruled against the law, finding that it had disparate impact on minority voters, and somewhat in passing said that Texas’s defense of “oh they can just do mail-in ballots” wasn’t sufficient, mainly because many of the affected voters (largely older voters) simply didn’t trust mail-in ballots:

There was substantial testimony that people want to vote in person at the polls, not even in early voting, but on election day, and they were highly distrustful of the mail-in ballot system. For some African-Americans, it is a strong tradition—a celebration— related to overcoming obstacles to the right to vote. Reverend Johnson considers appearing at the polls part of his freedom of expression, freedom of association, and freedom of speech.

As part of that discussion, the judge noted in passing that compared to in person voting the risk of fraud was greater with mail-in ballots, though doesn’t substantiate that claim other than saying that there was “universal agreement” on that point. But the main complaint with mail-in ballots was that they required other burdens on voters: application for a ballot in advance and the requirement that you return the ballot prior to election day.

The evidence also indicates that the choice of using the absentee ballot system is not truly an appropriate choice. At trial, there was universal agreement that a much greater risk of fraud occurs in absentee balloting, where some campaign workers are known to harvest mail-in ballots through several different methods, including raiding mailboxes. Mail-in ballots are not secure and require an application in advance of the election and mailing or returning the ballot before election day.

So, yes, the lower court said “mail-in ballots are not secure” but it was very clearly in the context of saying that minority voters felt less comfortable being shunted into mail-in ballots by a racist voter ID law, and wanted to be able to vote in person. In context, there is zero support for the claim that Oldham makes in his ruling that “mail-in ballots are prone to fraud” or not secure. And there’s certainly no support for going even further and claiming that “voting by mail jeopardizes election integrity and democracy itself.”

Judge Nelva Gonzales Ramos’s original ruling was doing the opposite of what Oldham is now using it for. Her ruling was making the point that these laws were looking to disenfranchise voters by forcing them to use a form of voting they were less comfortable with or less willing and able to use, thus diminishing their access to the polls. Oldham is using it to support voter disenfranchisement by pushing a disproven claim that mail-in ballots are an attack on election integrity.

Even worse, what Oldham is doing is claiming that the earlier en banc ruling in the Fifth Circuit supports his claims about mail-in ballots. But again that’s very much taking the ruling out of context. You can read it here. It includes a footnote on the quote about mail-in ballots that makes it clear it is not claiming there’s a problem with mail-in ballots, and explicitly talks about how “vital” they are:

This statement is not intended as a criticism of allowing mail-in ballots, which are a vital means of enabling voting when it would otherwise be difficult or impossible for some people to exercise their right to vote in person. It is simply an acknowledgement that the evidence supporting the need for reform was minimal on the in-person voting side.

It gets even more ridiculous: Ho’s parenthetical isn’t a misquote. The en banc court really did credit a finding that mail-in ballot fraud is “a significant threat.” What Ho strips out is what that finding was doing there. It appears in a passage explaining why being shunted onto mail ballots was a burden on the plaintiffs — seven of them testified they were reluctant to vote by mail precisely because they’d heard about harvesting. The court credited their fear as a reason the state couldn’t tell them “just vote by mail.” Ho takes a finding about why voters didn’t want mail ballots forced on them and repurposes it as a reason to take mail ballots away.

The district court did not clearly err in finding that mail-in voting is not an acceptable substitute for in-person voting in the circumstances presented by this case. We are by no means criticizing Texas for making mail-in voting available, as it represents an important bridge for many who would otherwise have difficulty appearing in person. Instead, we conclude that it is not the equivalent of in-person voting for those who are able and want to vote in person. Mail-in voting involves a complex procedure that cannot be done at the last minute…. It also deprives voters of the help they would normally receive in filling out ballots at the polls, which Plaintiff Naomi Eagleton cited as a reason why she prefers to vote in person.

Elderly plaintiffs may also face difficulties getting to their mailboxes, like Plaintiff Carrier, who has to be driven to his mailbox because it is at the local post office. Id. at 673. Seven of the Plaintiffs further testified they are reluctant to vote by mail due to the increased risk of fraud because of people who harvest mail-in ballots from the elderly. Id. at 676–77. The district court credited expert testimony showing mail-in ballot fraud is a significant threat— unlike in-person voter fraud. Id. at 639–41, 676. Finally, with mail-in voting, voters lose the ability to account for last-minute developments, like candidates dropping out of a primary race, or targeted mailers and other information disseminated right before the election.

So even the part that the Fifth Circuit previously “affirmed” tries to make it abundantly clear that it’s not challenging the importance of mail-in ballots at all, it’s reinforcing how important they are. It’s just saying that for some voters it’s not a substitute, and that elderly voters are concerned about the potential for harvesting ballots from the elderly. Judge Ho ignores all that context to briefly quote a tiny bit of the ruling totally out of context.

Of course, in the years since, Trump and MAGA Inc. have decided that one of the best ways to attack election integrity is to falsely claim that mail-in ballots are unsafe. This is simply untrue. And we have tons of evidence to debunk the claim that mail-in ballots are inherently at higher risk of fraud.

Indeed, we now have actual empirical data that looks at the rates of fraud in states that switched to mail-in voting, which shows no noticeable increase in fraud (and, again, it bears repeating that documented cases of fraudulent voting are vanishingly rare in all cases, both in-person and mail-in):

… we find no evidence that voting by mail increases the risk of voter fraud overall; if voting by mail creates more opportunities for fraud, those opportunities do not appear to have been realized in the data.

Speaking of actual data, the data that Judge Oldham cites actually cuts against his own claim. Part of his argument for why there’s no evidence that the plaintiffs in this case will “continue to face problems” in voting is that the number of voters who have their ballots rejected has decreased significantly over the years:

But the evidence since S.B. 1’s enactment says otherwise. The number of mail-in application or mail-in ballot rejections caused by missing or mismatched identification numbers dropped from 11 or 12 percent to 2.7 percent in just eight months. And officials testified that the numbers will “continue to decline” because Texas’s identification database will “continue to get more robust,” and voters will “get more used to” the new procedures. ROA.46413. That’s far from the “substantial risk” of injury the district court prophesied.

But 2.7% is potentially still a lot of voters. Even with this law suppressing vote by mail, in the 2024 general election about 350,000 people in Texas voted by mail. 2.7% of that would be about 10,000 people who had their mail-in ballots rejected. And as Oldham notes, originally it was in the 11 or 12% range, which would be a massive number of voters.

That is way, way, way higher than the amount of fraud found in literally any study of any kind of voting, mail-in or in person. Indeed, Texas Attorney General Ken Paxton tasked his team with finding voter fraud, spent 22,000 hours researching it… and found a grand total of 16 prosecutions. And all were for having the wrong address on their registration forms, not any kind of fraud that “threatens democracy.” And, actually, it’s the same thing that Ken Paxton himself is now being accused of doing.

So if we’re talking about threats to election integrity and democracy, it sure seems like this law has way more empirical evidence in support of that claim than the one about mail-in ballots: approximately 10,000 rejected ballots against 16 cases of “ballot fraud” (basically all with the wrong address). Which one is the bigger “threat” to democracy?

Hell, just in the ruling from Judge Oldham alone, we have an actual real human example of someone harmed by the law:

Yvonne Yvette Iglesias… is blind in one eye and has paraplegia and diabetes. She had applied to vote by mail in the 2022 primary and general elections, her applications were rejected because she failed to include an identification number, and her curative attempts were unsuccessful because she still did not include an identification number.

Oldham’s answer to Iglesias is that she testified that she’s since learned more about the requirements under the law and is therefore “better able” to comply. To him, that means no substantial risk of future injury. But even Oldham cites others who had similar issues. And while each of them eventually had those issues resolved, all of these examples should be evidence of real problems with the law:

Teri Saltzman is a legally blind voter. She testified that her mail-in-ballot application was rejected during the March 2022 primary election and that her blindness caused difficulty using the online ballot tracker to cure her application. But her struggles were quickly resolved; she voted in the November 2022 general election without incident. Similarly, Stella Guerrero-Mata has limited vision. Her mail-in ballot was rejected because she forgot to put her identification number on the carrier envelope. But she put the correct identification information on her application for a mail-in ballot, and is now aware that the carrier envelopes contain a space for her identification number in future elections. None of these members has shown a “substantial risk” of disenfranchisement.

So, yes, some people eventually figure it out, but only after significant difficulty and often rejected applications. And Oldham is literally dismissing the fact that a blind woman couldn’t use an online ballot tracker because she’s blind as no big deal.

There is also further evidence that this law pushed people to not even try to vote.

The study found that 30,000 voters in that primary — or 1 out of 7 voters who started the process to vote by mail — had either their application or ballot rejected, and that “roughly 90% of these individuals did not find another way to participate in the 2022 primary.”

So we have real world empirical evidence that this law is suppressing voter access to the polls, which does impact election integrity and democracy. There remains zero empirical evidence that voting by mail harms election integrity.

What this really is, though, is judicial citation laundering. Oldham and Ho, for the sake of partisan gamesmanship, need the claim that mail-in ballots are fraud-prone to be true, and they certainly can’t show it with facts. So they run it through a lower court’s out-of-context sentence and cite it back to themselves as established law. Indeed, if they had to discuss this point in context they would admit that the lower court ruling was an effort to strike down an attempt to suppress voters.

It’s also important to point out that none of this was necessary for this case. Oldham’s actual opinion is based almost entirely on the question of standing (the one bit that is reached on the merits is because district attorneys don’t administer elections). Neither of those holdings requires mail-in ballots to be fraud prone. Nothing in the opinion requires it. Oldham just includes that for window dressing… and to help the next judge who will point to this ruling to re-emphasize the false claim that mail-in ballots are “prone to fraud.”

Filed Under: 5th circuit, andrew oldham, james ho, ken paxton, mail-in ballots, voter id, voter suppression, voting