On Tuesday, April 7, the State of Wisconsin held a primary election in the midst of this Pandemic. Previously the State’s Democratic Governor, , attempted to recognize the impact of the Pandemic on in-person voting by encouraging voting by mail through modifying the rules for the submission and counting of votes by mail, but the Republican-controlled state legislature objected to those changes. This led to litigation. Eventually the U.S. Supreme Court on Monday, April 6, by a 5-4 decision, granted the Republican National Committee’s application for a stay of the U.S. district court’s preliminary injunction requiring the State to count absentee ballots postmarked after April 7 (the date of the in-person voting).[1]
This post will examine that Supreme Court decision and the reactions thereto by the New York Times and the Washington Post) and by the Wall Street Journal. This blog post will conlclude by adding its comments to all of this.
The Lower Courts’ Decisions[2]
In early March several individual Wisconsin voters, community organizations and the state and national Democratic parties brought three lawsuits in a federal district court in Wisconsin against members of the Wisconsin Elections Commission seeking several forms of relief, all aimed at easing the effects of the pandemic on the upcoming election. The state and national Republican parties intervened as defendants, and on March 28, the federal court consolidated the three cases. After an evidentiary hearing, the district court entered a preliminary injunction extending the deadline for voters to request absentee ballots from April 2 to April 3 and also extending the deadline for election officials to receive completed absentee ballots from April 7 to April 13 (regardless of the postmark date). The preliminary injunction also barred the Elections Commission and election inspectors from releasing any report of the in-person polling before April 13.
The Elections Commission did not challenge the preliminary injunction, but the intervenors (the national and state Republican parties) appealed to the U.S. Court of Appeals for the Seventh Circuit for a stay of the preliminary injunction’s extension of the deadline for returning absentee ballots. However, on April 3, the Seventh Circuit denied such a stay, but granted the application for intervention by the Wisconsin Legislature.
U.S. Supreme Court’s Proceedings
On April 4, the intervenors (state and national Republican parties and Wisconsin Legislature) filed an emergency application with the U.S. Supreme Court for a stay of the district court’s preliminary injunction insofar as it required the State to count absentee ballots postmarked after April 7 (the day of the election). [3]
The next day (April 5) the Democratic National Party filed its response followed by the Republican National Committee’s reply. [4]
The very next day (April 6) the Supreme court issued its Per Curium majority opinion. This opinion was supported by Chief Justice John Roberts and Associate Justices Clarence Thomas, Samuel A. Alito, Jr., Neil M. Gorsuch and Brett M. Kavanaugh.
The Majority Opinion. This opinion started by claiming, “The question before the Court is a narrow, technical questions about the absentee ballot process . . . whether absentee ballots now must be mailed and postmarked by election day, Tuesday, April 7, as state law would necessarily require, or instead by mailed and postmarked after election day, so long as they are received by Monday, April 13.”
Important for the majority of the Court was the fact that the plaintiffs did not seek a preliminary injunction extending the deadline for mailing of absentee ballots. More importantly, the district court’s order “contravened this Court’s precedents” that have “repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.” (Emphasis added for the unintended ironical use of the word “ordinarily.”)
The majority opinion then criticized the dissent, which will be discussed after the dissenting opinion is summarized.
The Dissenting Opinion . The dissent was authored by Associate Justice Ruth Bader Ginsburg and joined by Associate Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
This opinion emphasized the importance of this primary election for U.S. president and many state positions in the context of the “COVID-19 pandemic” having become a “public health crisis” and the Governor’s March 24th ordering “Wisconsinites to stay home until April 24 to slow the spread of the disease.” As a result, “an unprecedented number of Wisconsin voters—at the encouragement of public officials—have turned to voting absentee. . . . Accommodating the surge of absentee ballot requests has heavily burdened election officials, resulting in a severe backlog of ballots requested but not promptly mailed to voters.” (Emphasis added.)
In response, according to the dissent, after an evidentiary hearing, the district “court concluded that the existing deadlines for absentee voting would unconstitutionally burden Wisconsin citizens’ right to vote.,” and therefore entered the preliminary injunction. (Emphasis added.)
Justice Ginsburg then pointed out that the Supreme court’s majority “requires absentee voters to postmark their ballots by election day, April 7—i.e., tomorrow—even if they did not receive their ballots by that date.” This “will result in massive disenfranchisement. A voter cannot deliver for postmarking a ballot she has not received. Yet tens of thousands of voters who timely requested ballots are unlikely to receive them by April 7, the Court’s postmark deadline.” (Emphasis added.)
The dissent continued, The majority opinion’s “suggestion that the current situation is not ‘substantially different’ from ‘an ordinary election’ boggles the mind.” (Emphasis added.)
The majority opinion claims that the plaintiffs in the district court did not ask for an injunction allowing ballots postmarked after April 7, but Justice Ginsburg pointed out that “the plaintiffs specifically requested that remedy at the preliminary-injunction hearing in view of the ever-increasing demand for absentee ballots.” (Emphasis added.)
Moreover, “The concerns advanced by the Court and the applicants pale in comparison to the risk that tens of thousands of voters will be disenfranchised. Ensuring an opportunity for the people of Wisconsin to exercise their votes should be our paramount concern.” (Emphasis added.)
The majority opinion is “wrong” to claim that this case presents a “narrow, technical question.” Instead, “The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. Under the District Court’s order, they would be able to do so.” Under the majority opinion, “that will not be possible. Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance—to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation” (Emphasis added.)
The Majority’s Response to the Dissent. This opinion asserts that before the preliminary injunction “the deadline for [election officials’] receiving ballots was already extended to accommodate Wisconsin voters, from April 7 to April 13. Again, that extension has the effect of extending the date for a voter to mail the ballot from, in effect, Saturday, April 4, to Tuesday, April 7. That extension was designed to ensure that the voters of Wisconsin can cast their ballots and have their votes count.” The preliminary injunction’s allowing “voters to mail their ballots after election day . . . is extraordinary relief and would fundamentally alter the nature of the election by allowing voting for six additional days after the election.”
Reactions to Supreme Court’s Decision[5]
The Washington Post’s Editorial Board and columnists as well as New York Times’ columnists unanimously criticized the Supreme Court’s decision. (The Wall Street Journal’s Editorial Board, however, supported that decision.)
The Post’s editorial pointed out that polling places in Milwaukee had been reduced from 180 to 5, causing “lines [of voters] snaked for blocks, with waits reported to be up to three hours long.” As a result, “plenty of people chose not to vote.” In contrast, “voters in Republican-leaning areas of the state reportedly had a far easier time.” The editorial also noted, “ When people are in line at a polling place at closing time, judges order the polls to stay open. It should have been the same for people who got in line properly for an absentee ballot. The conservative justices’ lack of concern for these thousands of voters will only encourage speculation that their motivation was partisan.”
The most stinging commentary was provided by the Post’s Jennifer Rubin. She noted the irony of the majority’s opinion that delaying the date for return of the absentee ballots “fundamentally alters the nature of the election.” Yes, Rubin said, “it would make it safer (fewer people would have to risk exposing themselves to the coronavirus at the polls) and would encourage more participation.” This decision “is among the most irresponsible and anti-democratic in recent memory.” She also quoted Michael J. Abramowitz, the President of Freedom House, , who said,, “the emerging debacle surrounding the Wisconsin primary demonstrates the crucial need to take strong measures to protect elections during the eCOVIS-19 pandemic.” Finally, “Republican politicians and conservative justices will not shy from making voting difficult, dangerous and confusing. Their highest goal is not robust elections, but elections in which fewer voters turnout.. . . [Such] motives (think, suppress voting) are obnoxious and anti-democratic.”
Another Post columnist, E.J. Dionne Jr., said that President Trump had made clear that “for Republicans voter suppression is part of the party’s game plan.” Under a Democratic proposal for federal financing of nation-wide mail-in voting, Trump said, “you’d never have a Republican elected in this country again.” He also recently tweeted that voting by mail “for whatever reason, doesn’t work out well for Republicans.”
Linda Greenhouse, who has spent four decades studying and writing about the Supreme Court for the New York Times, said, “I’ve rarely seen a development as disheartening as this one: a squirrelly, intellectually dishonest lecture in the form of an unsigned majority opinion . . . about how ‘this court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.’” (Emphasis added.)
“How could they say that,” according to Greenhouse, when “[p}eople shouldn’t ordinarily be afraid of catching a deadly virus when exercising their right to vote. Half the poll-worker shifts in the city of Madison are not ordinarily vacant, abandoned by a work force composed mostly of people at high risk because of their age.” And “Milwaukee voters are not ordinarily reduced to using only five polling places. [Voters and poll workers do not ordinarily hazmat suits.] And the number of requests for absentee ballots in Milwaukee doesn’t ordinarily grow by a factor of 10, leading to a huge backlog for processing and mailing.” (Emphases added.)
Greenhouse concluded by asserting the Court’s majority was “unwilling to do what they could to help” the Wisconsin election by rejecting the Republicans’ challenge to “the common-sense solution that a federal judge had devised with the support of the officials who actually had to carry out the election.” That majority’s decision “raises the question whether the empowered conservative majority has the situational awareness to navigate the dire situation that faces the country, and whether it can avoid further displays of raw partisanship that threaten to inflict lasting institutional damage on the court itself. It’s a moment that calls on everyone in a position of power to display vision and a generosity of spirit.” (Emphasis added.)
In addition,, some of the commentators had suggestions for improving election laws.
The previously mentioned E.J. Dionne suggested that “Congress must pass legislation as part of the next economic rescue package that will require mail-in ballots in every state and finance the effort with federal money” and that “Biden and Sanders . . . should hold a joint video news conference with Sens. Elizabeth Warner . . and Amy Klobuchar . . .on behalf of Warren’s comprehensive bill to provide $4 billion for postage free mail ballots . . . [and] a ban on onerous voting requirements, hazard pay for poll workers and an end to voter purges at a moment when it will be hard for voters to defend their rights.” Finally Dionne advocated Liberals to press for “remedies (such as expanding the size of the court0 to battle both conservative court-packing and right-wing judicial activism.”
Richard Hasen, Professor of Law and Political Science at University of California at Irvine School of Law, said, “[S]tates need to be prepared to thwart and prosecute any attempts to tamper with ballots. . . . states should send an application for an absentee ballot to every voter listed on voting rolls. . . .Voters should also be allowed to request absentee ballots online. . . . States should also prevent the unlimited collection of absentee ballots by private individuals . . . . some voters who need assistance getting their votes to the U.S. mail or to a state collection box . . . . Absentee voters should be told if their ballots are being rejected for technical reasons — such as a purported mismatched signature — and have the chance to cure the problem and have their ballot counted.”
David Byler, a data analyst and political columnist focusing on elections, polling, demographics and statistics, offered these thoughts. “We should keep one feature of this messy Wisconsin election around: a slower process for reporting results. . . .This restriction made for a relatively muted election night: Reporters weren’t live-tweeting votes as they came in, quickly writing takes on how to interpret the race or trying to spin out a second-day story. . . . Ramping up vote-by-mail would extend the franchise, help virus-proof our system and make the process more psychologically bearable.”
John Hickenlooper, a former mayor of Denver and governor of Colorado and current candidate for the U.S. Senate, described his state’s successful voting from home for the last six years as a model for reforming other jurisdictions’ election laws. “Every eligible Colorado voter receives a ballot in the mail roughly three weeks before Election Day, and after marking their choices from the comfort of their own home, voters mail the ballot back or deposit it at one of the hundreds of drop-off locations around the state (and put on their “I Voted” sticker). We also make it possible for voters to register through Election Day, and to vote in person. Denver city and county voters even have the ability to track the status of their ballots, with email or text notifications, as they travel through the postal system. The “Ballot TRACE” software ensures that every mailed ballot is accounted for.”
In addition, Hickenlooper says, “In Colorado, election officials conduct rigorous risk-limiting audits after elections. They also use a centralized database to compare signatures in the voter file with those on ballot envelopes and track ballot returns to keep an eye out for any possible irregularities. And, of course, one advantage of using mailed ballots is that paper can’t be hacked.” This system has increased voter turnout by 3.3% and saved about $6 per voter from reduced printing, labor and other costs. In its first year it increased turnout of unlikely voters (younger and low-propensity voters) by 20 %.
The lone contrary voice on these issues from prominent mainline newspapers was the Wall Street Journal’s editorial, which said the Supreme Court “rightly reversed a district judge’s last-minute order that would have allowed Wisconsin ballots to be cast after the election was legally over. The confusing episode is a reminder that, even in a pandemic, steps as grave as rewriting voting rules should be up to elected representatives and not freelanced by judges.”
Conclusion
Needless to say, this blogger agrees with the Washington Post and New York Times. Voting by U.S. citizens is an unalienable right and needs to be encouraged and protected, not suppressed. This especially is true during times that are not ordinary, like the current pandemic.
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[1] Opinions, Republican Nat’l Comm. v. Democratic Nat’l Comm., No. 19A1016 (U.S. Sup. Ct. April 6, 2020).
[2] Ibid.
[3] Emergency Application for Stay, Republican Nat’l Comm. v. Democratic Nat’l Comm, (No. 19A1016, U.S. Sup. Ct. April 4, 2020).
[4] Response to Application for Emergency Stay, Republican Nat’l Comm. v. Democratic Nat’l Comm (No. 19A1016 (U.S. Sup. Ct. April 5, 2020); Reply in Support of Emergency Application for Stay, Republican Nat’l Comm. v. Democratic Nat’l Comm (No. 19A1016 U.S. Sup Ct. April 5, 2020).
[5] Editorial, Wisconsin Republican leaders put voters in an impossible position, Wash. Post (April 7, 2020); Rubin, Wisconsin shows the fragility of democracy, Wash. Post (April 7, 2020); E.J. Dionne, Jr., What we learned from Wisconsin, Wash. Post (April 8, 2020); Marcus, Wisconsin’s debacle may be the most infuriating of the coronavirus failures, Wash. Post (April 7, 2020); Waldman, Wisconsin’s election nightmare is a preview of what could happen in November, Wash. Post (April 7, 2020); Olsen, There’s plenty of room to compromise on mail-in voting. Get it done, Wash. Post (April 8, 2020); Byler, The Wisconsin election was a mess. But there’s one element of it worth emulating, Wash. Post (April 8, 2020); Hickenlooper, We’ve been voting at home for six years in my state. It’s time to do it nationally, Wash. Post (April 8, 2020); Hasen, Trump is wrong about the dangers of absentee ballots, Wash. Post (April 9, 2020); Editorial, You Shouldn’t Have to Risk Your Life to Vote, N.Y. Times (April 3, 2020); Greenhouse, The Supreme Court Fails Us, N.Y. Times (April 9, 2020); Assoc. Press, In Wisconsin, Missing Absentees Spur Questions and Anger, N.Y. Times (April 9, 2020) ;Boule, The G.O.P. Has Turned Voting in Person Into a Death Threat, N.Y. Times (April 10, 2020) (“There is no part of the Republican Party — not its president in the White House, not its leadership in Congress, not its conservative allies on the Supreme Court, not its interest groups or its affiliated media — that has an interest in or commitment to a fair, equal and expansive democracy.”); Douglas, Yes, Wisconsin Republicans used the pandemic to stop people from voting, Guardian (April 9, 2020) (Douglas, a professor at Amherst College: “Wisconsin, once a thriving crucible of progressive politics, has turned into a vanguard of the Republican assault on democracy.”); Editorial, Wisconsin’s Election Confusion, W.S.J. (April 7, 2020).