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There seems to be some confusion about the Supreme Court’s ruling on Monday in connection with Tuesday’s Wisconsin primary. This owes to reporting that suggests, or at least could lead its audience to believe, that the Court’s five conservative-leaning, Republican-appointed justices, over the strident objection of its four left-leaning, Democratic-appointed justices, directed that the primary proceed with in-person voting, despite the coronavirus threat.
That is not what happened.
The state government of Wisconsin, led by Governor Anthony Steven Evers, a Democrat, made the decision to go forward with the primary, and with in-person voting. As the Court’s majority emphasizes, that was not the Court’s call, nor is it the Court’s place to opine on the wisdom of the state government’s decision.
The majority’s unsigned opinion explains that the issue the Court was called upon to decide was a narrow one, pertaining to absentee ballots. Specifically, at the urging of Democratic Party organizations concerned about the COVID-19 pandemic’s effects on voting, federal district judge William Conley (an Obama appointee) extended the deadline for receipt of mail-in ballots from Tuesday April 7 (the primary-election day) to Monday afternoon, April 13. That aspect of the district court’s ruling was not in dispute. Judge Conley, however, directed that that absentee ballots were eligible to be counted regardless of when they were mailed in or otherwise delivered, as long as they came in by the April 13 deadline. In effect, that meant absentee ballots could be cast after in-person primary voting had closed on April 7.
Obviously, this could mean the election would be materially altered by events occurring after formal conclusion of the primary election — not least, news about the apparent election result. To address this problem, Judge Conley further ordered the Wisconsin Election Commission and election inspectors to suppress any report of the voting results until after the new April 13 deadline for the receipt of absentee ballots.
There were at least three problems with this resolution. First, when they filed their lawsuit, the Democratic plaintiffs had not asked the district court to permit the mailing of ballots after the polls were closed on April 7. Second, the Wisconsin Election Commission and election inspectors were not parties to the lawsuit, and thus did not have a right to be heard before Judge Conley gagged them. Finally, the district court’s resolution worked a significant change in election rules. This ran afoul of Supreme Court precedent, particularly the 2006 Purcell v. Gonzalez decision, which instructed lower federal courts to resist altering rules on the eve of an election.
Consequently, the majority (Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh) ruled that in order for votes to count, the absentee ballots must be postmarked by Election Day (April 7) and received by the Election Commission by April 13.
Justice Ginsburg dissented (joined by Justices Breyer, Sotomayor, and Kagan). She argued that the coronavirus crisis had backlogged the Election Commission with mail-in-ballot requests, meaning that many such ballots (potentially thousands of them) would not be provided to voters in time to comply with the April 7 deadline. Ergo, the Court’s ruling needlessly placed voters in the quandary of risking disease by voting in person or forfeiting their right to vote — in an important election in which not only the Democratic presidential nomination but many seats on the Wisconsin state courts, including its highest court, are at stake.
Justice Ginsburg has a good point about the majority’s reliance on Democratic organizations’ failure to ask for an extension of the mail-in deadline. Oddly, the majority asserts that Ginsburg’s dissent “entirely disregards the critical point that the plaintiffs themselves did not ask for this additional relief in their preliminary injunction motions.” To the contrary, Justice Ginsburg counters that, while the plaintiffs omitted that request from their written motions, they explicitly argued for it at the hearing. They did this on their own, unbidden by Judge Conley, because by then the pandemic had caused a surging demand for absentee ballots. Given the majority’s concession that it is not “necessarily” concluding that Democrats forfeited this relief, Ginsburg is persuasive in rebutting their argument.
On the other hand, Justice Ginsburg is at her least persuasive in turning the Purcell precedent on its head. She argues that it is not Judge Conley but the Court itself that runs afoul of Purcell: On the eve of the election, it has altered the election rules that were in place — i.e., the ones fashioned by Conley. The point of Purcell, however, is to instruct the lower courts not to alter election rules. If federal judges ignore binding Supreme Court guidance, the Court obviously must overrule them — otherwise, what is the point of having the guidance?
If I had my druthers, absentee balloting would not be permitted except in extraordinary circumstances. Voting is a sufficiently important privilege that we should all troop to the polling place and cast our ballots on Election Day. This way, we all vote based on the same available information, and the chances of fraud — which is what you should worry about if you are truly concerned about disenfranchisement — are minimized.
Still, I’m sympathetic to the dissent in this case. My views notwithstanding, voting by mail is widely permitted. Even for traditionalists, moreover, absentee balloting is permissible in extraordinary circumstances. What could be more extraordinary than the ongoing health crisis? It is being demanded of Americans that they shut down their livelihoods for the greater good of stopping the spread of a deadly infectious disease. How ridiculous, then, that Wisconsin state officials have not canceled in-person voting as other states have done. They should have either made it easier for people to vote by mail or postponed the election until it could safely be held.
Regardless of what one thinks about the ruling, though, the Supreme Court is getting a bad rap. Their case is about nothing more than whether ballots mailed in the six-day period after Election Day should count. It was not the justices’ decision to go forward with Wisconsin’s primary during a pandemic. Nor is the Court any way responsible for the risks entailed by in-person voting.