Adam Liptak NYT Analysis: “Rulings on Wisconsin Election Raise Questions About Judicial Partisanship”


 In a pair of extraordinary rulings on Monday, the highest courts in Wisconsin and the nation split along ideological lines to reject Democratic efforts to defer voting in Tuesday’s elections in the state given the coronavirus pandemic. Election law experts said the stark divisions in the rulings did not bode well for faith in the rule of law and American democracy.

“Election cases, more than any other kind, need courts to be seen by the public as nonpartisan referees of the competing candidates and political parties,” said Edward B. Foley, a law professor at Ohio State University. “It is therefore extremely regrettable that on the very same day, on separate issues involving the same Wisconsin election, both the state and federal supreme courts were unable to escape split votes that seem just as politically divided as the litigants appearing before them.”

Richard L. Hasen, a law professor at the University of California, Irvine, and the author of a recently published and prescient book, “Election Meltdown,” said the pandemic had made a bad situation much worse.

“Monday’s performance by the courts augurs a nasty partisan divide in the judicial branch,” Professor Hasen said. “It threatens the legitimacy of both the election and the courts.”

“Already before the coronavirus crisis, 2020 was shaping up to be a record-setting year for election litigation,” he said. “Covid-19 means there will be even more lawsuits than before over issues like absentee ballot protocols and the safety of in-person voting.”…

Some scholars said the public should not assume that the justices were driven by partisanship rather than their judicial philosophies.

“It’s unfortunate that both the Wisconsin and U.S. Supreme Court rulings broke down the way they did, because it lends credence to the perception that law is increasingly no different than politics,” said Ilya Shapiro, a lawyer with the Cato Institute, the libertarian group. “But the decisions weren’t partisan.”

“Republican-appointed judges tend to want to apply the law as written, while Democrat-appointed ones want to see ‘justice’ done, even if it means bending the rules,” he said. “In the Wisconsin context, Republican-affiliated judges would leave any decision to delay the election or change its operation to the Legislature, while Democrat-affiliated ones want to fix the problem themselves.”

“I agree with the former approach,” Mr. Shapiro said, “because, even in a pandemic, we shouldn’t cast aside the rule of law or the separation of powers.”..

Richard H. Pildes, a law professor at New York University, said judicial philosophy helped explain Monday’s ruling from the U.S. Supreme Court. “I’d say ‘liberal’ judges are more comfortable with federal courts crafting what they see as pragmatic, ad hoc responses to extraordinary election circumstances,” he said, “while ‘conservative’ judges believe that federal courts should retain as much of the pre-existing rule structure — such as that absentee ballots must be postmarked on or before Election Day — as possible.”

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