Breaking: Supreme Court on 5-4 Vote Reverses District Court on Late-Arriving Absentee Ballots in Wisconsin Race. This is a Bad Sign for November in a Number of Ways.

You can read the opinion and dissent here.

In some ways, it is unsurprising that the Court divided 5-4 (conservative/Republican Justices against liberal/Democratic Justices) on a question whether the emergency created by COVID-19 and the dangers of in-person voting justified a district court order to extend the receipt of absentee ballots from April 7 to April 13 (only ballots postmarked by April 7 will be counted).

On the one hand, conservatives are wary of federal courts rewriting election rules at the last minute (the Purcell principle idea, which gets heavy play here). On the other hand, the liberals point out that because of the backlog of absentee ballot requests, there are something like 10,000 voters who will not get an absentee ballot by April 7 in time to send it back. They see this as disenfranchisement because it is too dangerous for voters to go to the polls under the conditions of the pandemic. As Justice Ginsburg wrote in her dissent of these voters: “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.”

So this looks like a typical divide between conservatives who favor strict rules even when they risk disenfranchisement of voters versus liberals who are willing to modify election rules to protect voting rights. We’ve seen this play out many times in Supreme Court voting rights cases as in the past.

On the other hand, it is a very bad sign for November that the Court could not come together and find some form of compromise here in the midst of a global pandemic unlike anything we have seen in our lifetimes. Like the Wisconsin Supreme Court, the U.S. Supreme Court divided along partisan and ideological lines. Already in 2018, before COVID, the amount of election-related litigation had hit a record (data in my book, Election Meltdown). The year 2020 was likely to set a new record. But with election changes proliferating and a fight over expanded absentee balloting necessary to combat the COVID crisis, the amount of litigation is going to skyrocket. And it does not look like the courts are going to be able to do any better than the politicians in finding common ground on election principles.

This means that there is a lot of work to do now to try to avoid election meltdown. More on that in coming weeks. But the message from today is: don’t expect the courts to protect voting rights in 2020.

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