“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
In March, five Trump judges on the Fifth Circuit made possible a decision blocking states from counting certain absentee ballots even though they were mailed on or before Election Day. The court struck down a Mississippi law allowing such ballots to be counted as long as they are received within three days after the election. The case was Republican National Committee v. Wetzel.
What was this case about?
Many states allow voters to cast their ballots by mail. Each state establishes its own set of rules as to who can vote absentee and how such ballots must be cast in order to be counted.
During the COVID lockdown, Mississippi passed a bipartisan bill allowing absentee ballots to be counted as long as mailed by Election Day and received within five business days of Election Day. Mississippi is one of many states that allow timely-cast mail ballots to be voted as long as they are received within a specified short period of time after the election.
The Republican National Committee sued to prevent Mississippians’ ballots from being counted unless they were received by Election Day. They claimed that the federal law establishing a nationwide election day prohibits counting ballots received after that day. A federal district judge rejected that argument.
What did the Fifth Circuit do?
In 2024, a three-judge panel of the Fifth Circuit reversed the lower court. All three judges were nominated by President Trump: James Ho, Kyle Duncan, and Andrew Oldham. They cited the language of the federal law in which Congress established a “day for the election” of members of Congress and presidential electors. They interpreted “the day of the election” to mean the day by which ballots must both be cast by votes and received by election officials.
In March 2025, the full court voted 10-5 against en banc review of that decision (with two judges recused). All ten no votes came from Republican-nominated judges, half of whom are Trump judges (Oldham, Ho, and Duncan from the panel decision, plus Kurt Engelhardt and Don Willett). The five votes seeking review came from judges nominated by Democratic presidents, including Biden judges Dana Douglas and Irma Ramirez.
Judge James Graves wrote the dissent on behalf of his colleagues. He explained that “the day for the election” means only the day by which votes must be cast. There is nothing in that phrase that gives it the additional meaning of including the receipt of the ballots. He noted that dictionaries at the time Congress passed the law defined an “election” as the day that voters make their choice for public officers – “nothing more.”
Calling the panel’s interpretation “strained,” the dissenters wrote that when Congress has preempted state election laws, it has done so by “positive and clear statutes.” That is not the case here.
James Ho Attacks Law Firms
Judge James Ho concurred with the decision not to review the panel decision he had been part of. But he devoted his concurrence not to elections, ballots, voters, or even matters of how to interpret statutes. Instead, he attacked law firms with certain types of clients. It was not hard to determine that he meant clients with causes that might not agree with Donald Trump’s agenda.
One of the dissenting judges – Stephen Higginson – wrote a very brief concurrence citing a criticism of the panel decision on Substack posted by Adam Unikowsky, an attorney with the firm of Jenner & Block. Higginson wrote that while the court receives amicus briefs, “it is rarer that topflight lawyers, like Unikowsky, have time to offer scholarly critique of a case neither he, nor Bernstein [another prominent lawyer cited in the post], was retained to handle.”
Ho used this as an excuse to attack law firms. But not just any law firms. He claimed that “major law firms consistently favor one side in highly charged disputes like this one.” And he cited criticism that such law firms “have abandoned neutral principles of representation.”
This comes at a time that the Trump administration is unconstitutionally targeting law firms – including Jenner & Block – for having clients opposed to Trump and his agenda. If Ho were actively auditioning for an opportunity to help the administration destroy our democracy from a perch on the Supreme Court, he could not be more obvious.
This ruling illustrates the importance of our federal courts to health, welfare and justice and the significance of having fair-minded judges on the federal bench.