There has been a ton of commentary on the Supreme Court’s split decision in the Wisconsin voting case, which reversed a district court order allowing absentee ballots received by April 13 whether or not they were postmarked by the April 7 election date to count toward the election, and I hesitate to add to it. But I think there’s something really important to be said not about what the Court decided but about how it decided it.
The district court issued its order because, thanks to the coronavirus pandemic, well over 1 million Wisconsin voters had requested absentee ballots (more than 4 times the usual number of requests). This led to a backlog of requests and problems with postal service handling of ballots, meaning many voters (we are still trying to figure out how many, but in the thousands) did not received their ballots by April 7 in order to vote them and get them postmarked in time.
It is very easy to criticize the Court’s 5-4 decision (with all the Republican-appointed Justices siding with Republicans to not allow the late-arriving ballots to count, and all the Democratic-appointed Justices dissenting and siding with Democrats) as the product of simple partisan infighting. At best, the decision could charitably be explained, as Rick Pildes told NYT’s Adam Liptak, as reflecting the Justices’ ideological rather than partisan commitments: ““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.”
I think the Court reached the wrong decision, but the matter is closer than some people say. While the district court didn’t frame it this way, it essentially extended the absentee voting period for a few additional days, allowing anyone who received a ballot to vote after the April 7 election day so long as the ballot was received before April 13.
There is much to be said for courts sticking to the rules as written before the election, because later decisions by courts can help (and be seen as helping) one side or another; and clear election rules should be followed barring extraordinary circumstances. The main Court error in its decision, in my view, was that the Court failed to recognize the truly extraordinary circumstances of the pandemic’s effect on the public health, and the failure of political actors in Wisconsin (primarily the Republican legislature, but also the Democratic governor who inexplicably dragged his feet until at the very last minute seeking to postpone the election) to act. This put many voters who did not receive absentee ballots in the horrible position of having to choose serious health risks or become disenfranchised. (Already Wisconsin health investigators are looking at whether people may have contracted the virus while voting.) Application of the Purcell Principle should be suspended when an emergency not of the parties’ own making causes a court to issue a last minute election order.
But the Court’s decision is far from the worst of what the Court did; much of the disenfranchisement in Wisconsin is at the foot of Wisconsin political actors (and the Wisconsin Supreme Court, which also along party lines split over the Governor’s last minute attempt to try to delay the election). Far worse than its decision was its opinion.
To begin with, the opinion (which Court insiders believe was drafted by Justice Kavanaugh, who got the original petition as the Circuit Justice for the 7th Circuit) was exceedingly sloppy. The Court spends all this time noting that the plaintiffs never requested the relief of the absentee ballot return extension in their original filing. But as Justice Ginsburg pointed out in her dissent, the plaintiffs orally made the request at the preliminary injunction hearing, which certainly seems in order given the rapidly changing and deteriorating conditions. Linda Greenhouse notes the oddity of the Court hung up on a procedural point that turned out to be completely wrong.
The Court was also sloppy in how it wrote its relief, requiring that ballots be postmarked by April 7. Now we know of at least 682 ballots in Madison alone that arrived by April 8 (meaning they were no doubt mailed by April 7) but without a postmark. Lots of mail does not get a postmark. These voters are being disenfranchised for no good reason. The Court as the very least should have accepted any ballots arriving by mail on April 8.
Beyond the sloppiness, and most troubling, is the cavalier nature of the Supreme Court’s opinion. It is one that ignores the pandemic and treats this as ordinary litigation in an ordinary time. The message it sends is that the Court cares little about the voting rights of people in the state, especially African-American voters in Milwaukee who have been facing a horrible risk related to the virus. In this extraordinary time of a pandemic, when a Wisconsin Republican legislative leader–in full protective gear–lied about the safety of casting a ballot and the ability to cast an absentee ballot at the last minute), the Supreme Court chose to vote remotely for safety reasons while denying some Wisconsin voters a chance to to the same.
Not only does the Court’s opinion show a nonchalance about the importance of voting rights in the most dire circumstances. It shows that the Court majority did not look for a way to build a bridge for a unanimous compromise opinion. The signal it sends is that we are going to have partisan warfare at the Court for the upcoming election, which is already shaping up to be one conducted under conditions of deep polarization and a pandemic. And the Court majority is not going to side with voters.
Although I usually criticize the Court for not giving reasons for most of its its “shadow docket” emergency election decisions, in this case the Court should have just issued its order with no explanation.
Because what the Court provided by way of reasoning has made things much, much worse.