Trump’s judges issued a shocking ruling that could have devastating consequences on Election Day.

On Friday afternoon, the U.S. Court of Appeals for the 5th Circuit issued a shocking decision declaring that states cannot count ballots that are ballots sent until election day though receive shortly thereafter. By his own admission, the ruling applies only to Mississippi and calls into question the legality of its election procedures just 11 days before the election. Nationwide, however, 18 states and Washington DC accept late-arriving ballots; The 5th Circuit’s argument would render all of these laws unlawful and invalid, invalidating hundreds of thousands (if not millions) of ballots. The court’s obvious goal, beyond destabilizing a close election, is to bring about a Supreme Court decision that could strike down all of these laws in one fell swoop.

The Republican National Committee cast this dispute as a test case to end the widespread practice of accepting ballots that arrive after Election Day but are postmarked by Election Day. (Republicans believe those ballots are disproportionately likely to support Democrats.) The RNC filed its lawsuit in Mississippi because it is the only state in the 5th District that counts late-arriving ballots, and conservative lawyers knew that could reach a positive verdict from a distance – correct court. RNC lawyers argued that federal law requires all votes to be cast receive until election day, not only pour until election day. And they claimed that this federal rule overrides or “preempts” state laws to the contrary, including Mississippi’s.

U.S. District Judge Louis Guirola Jr. sharply rejected that argument. He pointed out that under the Constitution, “the times, places and manners” of federal elections “shall be established by the states,” although Congress may “make or amend” state laws. Congress has not mandated specific rules for mail-in ballots, instead leaving those decisions to the states. The fact that Congress created an “Election Day” does not mean that it intended to invalidate ballots that were cast by that date but, for whatever reason, arrived shortly thereafter.

Now the 5th District disagrees. The three-judge panel that decided this case includes Donald Trump’s far-right, ultra-partisan nominees: Andrew Oldham, Kyle Duncan and James Ho. In his majority opinion, joined by Duncan and Ho, Oldham sided with the federal law , which established “the day of the election.” He then declared that this is “the day the ballots must be both.” pour of voters and receive by state officials.” Oldham claimed that a ballot is not actually “cast” until “the state assumes custody of it” — a controversial issue on which federal law is silent. By inventing this atextual rule, he was able to insist that late-arriving ballots actually be “cast” after Election Day.

Oldham’s definition of the word “cast” is, to reiterate, not enshrined in the statutory text. It also defies common sense: In normal English usage, a person has “cast” their ballot when they return it – by putting it in the mailbox, for example. By relying on an idiosyncratic definition of the word that does it not Although entrenched in federal law, Oldham could decree that late-arriving ballots would not be “cast” on time. He therefore held that Mississippi’s law governing the counting of these ballots was preempted by federal law.

There are massive practical, legal and historical problems with this theory. Here, too, the legal reasons are obvious: Congress never said that late-arriving ballots could not count; Some Republicans have proposed such a rule, but it has not passed. In fact, federal law is largely silent on exactly how states should implement early voting Postal voting. And in this silence, as Justice Guirola explained, the courts must defer to the states, which have primary authority under the Constitution to prescribe election procedures.

The alternative is chaos. States have spent decades developing their own rules for early voting and absentee voting, many of which would be jeopardized by the 5th Circuit’s logic. For example, if Congress requires voting to occur only on “Election Day,” is any early, in-person voting illegal? Oldham said no, but his attempt to draw a distinction is incoherent. He claimed that early voting was “completed” on Election Day and could therefore count. However, the concept of “completing” an election does not appear anywhere in federal law and therefore cannot distinguish early voting from late voting. It’s painfully obvious that Oldham is just making it up as he goes along.

Equally obvious are the historical reasons why Friday’s decision is absolutely wrong. States have been counting late mail-in ballots for more than a century, and federal courts have never stopped them (until now). Oldham dismissed these historical examples as “outliers,” but he is wrong: The reality is that most states did not allow widespread mail-in voting until recently. That’s what it means did Allow absentee voting for frequently counted ballots cast up to Election Day and received shortly thereafter. Oldham merely sought to downplay this clear historical record in order to advance a misleading, carefully selected argument against the practice.

Finally, the practical: With 18 states and DC – including large states like California – already accepting late ballots, the RNC sought a revolution in voting rights. Most states do not report exactly how many of these ballots are tabulated each year. But there are many: In the 2022 midterms, for example, Clark County, Nevada alone After Election Day, we received and counted approximately 40,000 valid mail-in ballots. Across the country, the number could easily be in the millions, especially as California counts ballots received up to a week after Election Day. If the Supreme Court adopted the 5th Circuit’s reasoning, it would invalidate all of those ballots.

And that, to be clear, is the game plan. Contrary to recent practice, the 5th Circuit did not issue a preliminary injunction but instead directed the district court to “provide appropriate relief.” It is certainly too close to the election to change the rules of the Supreme Court Purcell Principle. If these lower courts try to do this, it is likely that SCOTUS will stop them. But the 5th Circuit has now created a tool that will allow justices to address the issue after the election and potentially overturn the laws of nearly 20 states, making voting exponentially more difficult in the future.

It’s worth reflecting on how cynical and political Friday’s decision was. The 5th Circuit could and should have considered this case until after the election, knowing that a sweeping decision would spread confusion and uncertainty about the upcoming election. Now Mississippians won’t know if their ballots will count if they are slightly delayed by the postal service. Voters in many other states are informed that the 5th District has invalidated their ballots under federal law should are thrown away if they come back a little late. And people who reject the election results will take advantage of the ruling and claim the results are illegitimate. The 5th District gave the RNC exactly what it wanted: an excuse to undermine voting rights and reject the legitimacy of the election. It is a shockingly partisan and anti-democratic move with potentially catastrophic consequences.