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Trump Poised to Flip 11th Cir., Election Law on Tap (Corrected)

Nov. 19, 2019, 9:50 AMUpdated: Nov. 20, 2019, 9:56 PM

President Donald Trump is on the cusp of flipping the U.S. Court of Appeals for the Eleventh Circuit to a majority of Republican-appointed judges, the third such changeover during his administration.

The Republican-led Senate on Nov. 19 easily confirmed Robert Luck to the Atlanta-based circuit, 64 to 31, and is expected to confirm Barbara Lagoa to the same court as early as Wednesday.

Lagoa’s confirmation would actually flip the circuit central to several cases involving significant election law disputes. She received overwhelming bipartisan support in a procedural tally also on Nov. 19 that set up her confirmation vote.

Trump has turned over two other circuit courts with conservative appointments. The Pennsylvania-based Third Circuit flipped in March, followed by the New York-based Second Circuit last week with the confirmation of White House lawyer Steven Menashi.

A president’s political affiliation isn’t an indicator alone of how a judge might rule. But it reflects what a president wants in an appointment. Trump has moved aggressively to reshape the federal judiciary with conservatives.

Additional conservative appointees also could moderate majority opinions or write dissents that may prompt review from the U.S. Supreme Court. Also, it’s more likely that full circuit en banc sittings—or randomly drawn en banc sittings among a larger group of judges, as in the Ninth Circuit—will be a majority Republican. En banc panels are used to rehear some cases decided by a three-judge panel of the same court.

So far, the Trump has appointed nearly 160 federal judges to lifetime seats to district and appeals court seats. He’s also placed Brett Kavanuagh and Neil Gorsuch on the Supreme Court. The administration is currently racing to surpass 180 judicial appointments in the next couple of months, a goal Trump recently announced.

Circuit courts are the last stop for virtually all appeals in federal cases.

Election Law Hub

Flipping the Eleventh Circuit would place a Republican-appointed majority on a court that’s at the center of hot-button issues in Florida and Georgia.

“Because Florida is one of the main focuses of election related litigation, particularly over the next year or two, the Eleventh Circuit is going to hear a lot of important election related cases,” said Michael Morley, a professor at Florida State University College of Law.

For instance, a district court judge in Tallahassee struck down a state law that placed Republicans first on ballots, which the governor’s office said it would appeal. Florida also has appealed a ruling in a long-running dispute over restoring felon voting rights, and there is litigation over absentee ballot signature-matching requirements.

And last year’s controversial gubernatorial election in Georgia tees that state up for voting rights cases, too, said Eric J. Segall, a professor of law at Georgia State University.

“A very conservative Eleventh Circuit having control over voting rights cases is an important thing,” Segall said.

Those are cases likely to be heard before the full circuit court, Segall said. Full court or “en banc” decisions, which are another level of appeal after a three-judge panel, are where any division of ideologies is most important.

Not Liberal

Overall, however, any changes in decisions out of the Eleventh Circuit likely will be slight as court watchers say it wasn’t liberal before.

“Despite its Democratic majority for a while, it’s not a particularly liberal circuit,” Segall said. “So this flip doesn’t have as much significance as some people might think.”

The panel started with eight Democrat-appointees, three Republican-appointees, and one vacancy at the beginning of the Trump administration. But his appointees, culminating with Lagoa and Luck, would shift the balance.

Lagoa and Luck, two Florida Supreme Court justices, will replace a Democratic and Republican appointee, respectively. That would give the court seven Republican-appointees. Lagoa is the first Hispanic woman on the Florida high court. Luck is a former federal prosecutor.

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com