“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Eighth Circuit judge Steven Grasz cast the deciding vote to block a district court order that allowed mail-in voters to drop off their ballots in person, precisely the way absentee voters can, in order to prevent post office delays from disqualifying their votes. The October 2020 decision was in Organization for Black Struggle v. Ashcroft.
Missouri passed a law in 2020 adding voters in a defined “at-risk” category for COVID-19, such as elderly voters, to those who may vote absentee. Such absentee ballots may either be mailed or be dropped off in person at an election office by the voter or a relative and must be received by Election Day. Missouri also created a new category of “mail-in” voters, consisting of anyone else who has concerns about voting in person due to COVID-19. Ballots from such voters must be mailed in and received by Election Day, however, and cannot be dropped off in person.
Concerned about possible disenfranchisement due to postal service problems, a number of groups filed suit, asking that mail-in voters also be permitted to use in-person drop-off. A district court considered the evidence and found that mail-in voters had a serious “risk of total disenfranchisement” as a result of postal service “delays not of the voter’s own making.” The court issued a preliminary injunction that required Missouri officials to accept all mail-in ballots received by Election Day, whether through the mail or by in-person drop-off as with absentee voters. The state appealed and sought a stay pending appeal to block the order.
In a 2-1 decision in which Trump judge Grasz was the deciding vote, the Eighth Circuit granted the state’s request and blocked the injunction on October 23. The majority claimed that the state legislature had already helped those concerned about COVID-19 and that the legislation imposes only a “de minimis burden” on mail-in voters, who simply have to put their ballots “in the mail earlier.” The majority maintained that there was only “weak evidence” in the record below of postal service problems, that the state had an interest in “applying its duly enacted legislation” as passed, and that, as the Supreme Court has ruled, lower federal courts should “ordinarily not alter the election rules on the eve of the election.”
Judge Jane Kelly strongly dissented. She pointed out that there was “substantial evidence” in the district court that some voters who return their ballots by mail “will not have their votes counted,” including a letter from the US Postal Service itself stating that Missouri’s instructions about when to request mail-in ballots are “incompatible” with “mail-delivery timetables.” Appellate courts should ordinarily defer to district court findings. It was not sufficient for the state to simply claim that it wanted to implement the law precisely as passed under these circumstances, Kelly went on, when there was evidence that people would be disenfranchised and when the state could not identify a good reason for “imposing a mail-in requirement on one category of remote voters but not the other.” As to the concern about not “ordinarily” changing election rules shortly before elections, Kelly explained that Supreme Court precedent made clear that this was primarily to avoid confusion or discouraging voters from casting ballots, but the injunction in this case would have the “opposite” effect by “uniformly” treating both categories of voters who do not vote at the polls.
Overall, Judge Kelly concluded, “there can be no dispute” that with the district court’s injunction in place, “more, rather than fewer, Missourians would be able to exercise their right to vote and to have that vote counted.” As a result of Trump judge Grasz’s deciding vote, however, that will not happen in Missouri.