Marty Lederman has presented a criticism of the Supreme Court’s decision in the Wisconsin election litigation, but, with admirable humility (he puts “I think” in the title of his post), he concedes that he may be overlooking something in arriving at his position. I do think that he does, in fact, overlook something fairly fundamental, and I want to correct that misunderstanding:  the universal rule throughout the United States is that absentee ballots must be cast (postmarked) on or before Election Day, though they remain valid in many states even if received much later than that.   Once this misunderstanding is clarified, it permits a more direct focus on the stronger and more plausible arguments critics will have for challenging the Court’s decision. 

Whether or not Wisconsin should be holding an election at all today can certainly be disputed.  But that’s not the issue that was before the Supreme Court, as everyone recognizes.  Instead, the federal district court, recognizing that it could not change the date of the election, ordered two principal measures:  (1) that the state treat as valid all absentee ballots received by April 13^th; (2) that absentee ballot postmarked after  Election Day — and thus cast after Election Day — be treated as valid votes as long as they too were received by April 13^th.  The Supreme Court held that the district court lacked the power to order this second measure.  That is, the Court held that the district court was wrong to conclude the Constitution required Wisconsin to accept as valid absentee votes that were cast after Election Day. 

In other words, the Court concluded that absentee ballots still had to be cast (postmarked) on or before Election Day, but permitted them to be treated as valid votes if they were received nearly a week after.   The Court held that “state law would necessarily require” that absentee ballots be postmarked on or before Election Day.  Marty’s critique is that in so holding, the Supreme Court “added such a restriction to the franchise that Wisconsin’s own state law does not impose.”  Indeed, Marty thinks it follows that, once the Court accepted that Wisconsin could be ordered to accept ballots received up until April 13^th, it should also have accepted that ballots postmarked up until April 13^th would be treated as validly cast.  Because WI law does not expressly state that absentee ballots must be postmarked on or before Election Day, Marty continues, the district court did not “change” WI law by ordering that absentee ballots must be treated as valid if cast all the way up to April 13^th.

Here is the problem with Marty’s argument:  the policy of every State in the country is that absentee ballots must be postmarked – ie, cast – on or before Election Day.  There are many states that allow absentee ballots to be received after Election Day and still be treated as valid.  But even those States still require that these ballots be postmarked on or before Election Day.   Illinois, for example, treats absentee ballots as valid if received up to 14 days after Election Day, the longest period in the country; Alaska, Maryland, and Ohio are the next longest at around 10 days.  But every one of these states nonetheless requires these ballots to be postmarked (cast) no later than when polls close on Election Day.  The same is true in every state.  No state treats absentee ballots as valid if they are postmarked after Election Day.

The reason this is such a basic principle of election laws is straightforward:  you cannot vote after the polls have legally closed on Election Day.  An absentee ballot postmarked after Election Day is cast after the election is over.  And no state treats that as a valid vote.  It is true that Wisconsin law does not explicitly say that absentee ballots must be postmarked on or before Election Day, but Wisconsin law had no need to state that:  the law in Wisconsin had been that these ballots must be received by 8 pm on Election Day – and thus, by definition, they had to be postmarked on or before that day. 

The Supreme Court was thus not pulling a principle out of thin air, as Marty implies, when it concluded that even if Wisconsin law was to be changed to permit receipt up until April 13^th, state law would still require those ballots to be postmarked on or before today.  As noted, that is both the policy throughout the United States and it reflects the fundamental, universal principle that ballots cast after Election Day are not valid votes.  The only reasonable inference is that Wisconsin, like all states, would require postmark by Election Day even if receipt were valid up to 6 days later.  Indeed, while the district court started out by recognizing it had no power to change the date of today’s election, it essentially turned around and did that by permitting absentee votes to be cast until April 13^th.  Once the district court did that, there was a certain logic to its further order that election officials could not release the vote count until April 13^th, since that had effectively become the date the election was over.

But to say that Marty’s particular criticism of the Court is mistaken on this point is not to say that the Court’s decision was correct.  As I noted at the start, there are other, more direct and more plausible grounds for taking issue with the Court’s decision. 

The most direct argument is the straightforward one that, in the emergency situation we face, the federal courts have the power to protect the constitutional right to vote by fundamentally altering aspects of the way elections are conducted, including through measures such as treating as valid votes absentee ballots postmarked almost a week after Election Day.  That is, under the unique circumstances we face – when many absentee ballot requests might not be fulfilled in time for voters to cast those ballots before polls close – the constitutional right to vote should give courts the power to extend the time for voting for up to 6 days after Election Day.

That’s what’s actually at stake in the Court’s decision and the fundamental issue that divides the majority and dissent.  In other words, even if it’s correct that Wisconsin would certainly require absentee ballots to be postmarked before polls close today (even if still valid if received later), the Constitution should be understood to override that rule in the current circumstances.  This post has gone on too long to engage with that issue, but once we clear up the confusion about how election laws normally work, we can then focus on the real issue — whether and to what extent the Constitution should be understood to require that these normal rules be suspended, given our current circumstances.