Ping-Pong Ball Lottery Determines GOP-Majority Court Will Hear Biden Vax Mandate Lawsuit

The federal U.S. Court of Appeals for the 6th Circuit in Cincinnati, Ohio, a GOP-majority court, won a lottery to hear the consolidated lawsuit challenging President Joe Biden's vaccine mandate on Tuesday.

Under an obscure section of federal law, the clerk of the Judicial Panel on Multidistrict litigation, John W. Nichols, pulled a ping-pong ball from a bin to select where the case would be heard. Judges were not involved in the drawings.

A request to allow media access to the drawing by the Associated Press was refused.

The case is to be heard by a three-judge panel. The ruling could possibly present a major to Biden's efforts to enforce the mandate. Most of the judges in the 6th appeals circuit were appointed by Republican presidents, the circuit overall leans toward the GOP, the Associated Press reported.

The New Orleans-based 5th U.S. Circuit Court of Appeals, another court where most of the justices were nominated by Republicans, issued a ruling to put the mandate on hold.

After the U.S. Occupational Safety and Health Administration released details of the emergency rule November 4, Republican officials in 27 states, employers, and several conservatives, and business organizations filed challenges to the mandate, the Associated Press reported. A few unions also filed challenges in other federal courts.

In total, there are 34 objections that have been filed in all 11 regional circuits, as well as one for the District of Columbia.

Under the same section that requires the lottery, cases that challenge federal agency actions are consolidated upon the agency's request if they are filed in multiple circuit courts. Each circuit where a challenge is filed within the first 10 days of the agency taking action has a chance of being chosen.

For more reporting from the Associated Press, see below:

Joe Biden, Vaccine Mandate, Lottery
The U.S. Court of Appeals for the 6th Circuit in Cincinnati, Ohio, a GOP-majority court, has been chosen by lottery to hear the consolidated case against President Joe Biden's vaccine mandate. Biden speaks about COVID-19 vaccinations after touring a Clayco Corporation construction site for a Microsoft data center in Elk Grove Village, Illinois, October 7. Susan Walsh/AP Photo, File

It's not clear whether the court that will hear the case will act as the 5th Circuit did and side quickly with the Republican challengers. But legal experts have become increasingly concerned in recent years about the politicization of both federal and state courts, raising questions about whether justice is fairly administered or dispensed through a partisan lens.

Allison Orr Larsen, a professor at William & Mary Law School, co-authored a study published this year that found growing partisanship in federal judicial decisions. For decades, the study found that rulings on cases in which all judges in a circuit weighed in generally were not decided along party lines based on the presidents who appointed the judges.

"We did see a concerning spike starting in 2018 that led us to wring our hands," Larsen said in an interview.

The increasing partisanship in a branch of government that is supposed to be blind to partisan politics was seen in judges appointed by presidents of both parties, but Larsen said it's not clear why that was or whether it will last.

Some of the federal courts moved to the right when Donald Trump was president and Republicans controlled the U.S. Senate, which confirms judicial nominees. Trump appointed 54 judges to the circuit courts, which are one step below the U.S. Supreme Court, including filling one seat twice. That represents nearly 30 percent of the seats on the circuit courts, where cases are most often considered by three-judge panels.

Trump's appointees flipped the 11th Circuit in the South to Republican control and expanded the GOP-appointed majorities in the 5th, 6th and 8th Circuits in the Midwest and South. Biden's three appointees switched the New York-based 2nd Circuit to Democratic control.

Previously this year, the lottery had been used to assign just two cases. One involved fallout from a National Labor Relations Board ruling on an anti-union Twitter message by Tesla founder Elon Musk where objectors filed in two circuits. The other was over orders from the Federal Energy Regulatory Commission in which objectors filed in three.

The employer vaccine mandate is higher profile and further reaching. It calls for businesses with more than 100 workers to require employees to be vaccinated by Jan. 4 or wear masks and be tested weekly for COVID-19. Exemptions are provided for religious reasons and for those who work at home or only outdoors.

Because it's an unusual rule from the workplace safety agency, there is no consensus among lawyers on how the challenges will go. OSHA has issued just 10 emergency rules in the half century since it was formed. Of the six challenged in court, only one survived intact.

The Biden administration has insisted it's on strong legal footing. It also has the backing of the American Medical Association, which filed papers in support of the mandate.

"The AMA's extensive review of the medical literature demonstrates that COVID-19 vaccines authorized or approved by FDA are safe and effective, and the widespread use of those vaccines is the best way to keep COVID-19 from spreading within workplaces," the group said in its filing.

Among those challenging the rule is a consortium of construction contractors. They say they want their workers vaccinated, but that a requirement only on larger companies is just pushing vaccine-hesitant workers to take jobs with companies that have fewer than 100 employees.

"Crafting an unworkable rule that will do little to get construction workers vaccinated is an approach that is not only wrong but likely counterproductive," said Scott Casabona, president of Signatory Wall and Ceiling Contractors Alliance.

Officials with the workplace safety agency said they're considering extending the mandate to smaller employers.

A three-judge panel of the 5th Circuit extended the stay of the OSHA rule in an opinion released last Friday, expressing skepticism that the agency had the authority to implement the vaccine requirement. The 6th Circuit could modify, revoke or extend the stay.

It had not yet been determined which judges from the 6th Circuit will be on a three-judge panel to hear the case or whether it will be considered by all the judges.

The U.S. Department of Justice declined to comment on the selection of the court.

Joe Biden, Vaccine Mandate, Lottery
The U.S. Court of Appeals for the 6th Circuit in Cincinnati, Ohio has been selected by lottery to hear the consolidated case against President Joe Biden's vaccine mandate. Biden receives a third dose of the Pfizer/BioNTech Covid-19 vaccine in the South Court Auditorium in the White House September 27 in Washington, D.C. Anna Moneymaker/Getty Images

Updated 11/16/2021 at 6:41 p.m. ET: This story has been updated with additional information.