Now, as we await results from Wisconsin’s April 7 election (to be released starting at 4pm on Monday), we must wonder whether this election is one that fails our national commitment to genuine democracy and, if so, what to do about it.
In my judgment, without yet seeing those results, it is too soon to say that any of the reported vote tallies will require judicial modification or even judicial nullification.
To be sure, just from watching what took place on Tuesday — with Milwaukee voters braving coronavirus infection, perhaps even death, in hours-long lines at a paucity of polling places because of the pandemic — we know that what happened was an abomination, a civic tragedy, that never should have occurred. But to my mind that does not mean a court should invalidate the election, requiring a do-over, without regard to the results. Indeed, that would be unfair to those voters who, as Sherrilyn Ifill has so movingly described it, were “risking it all to stand as full American citizens and cast a ballot.”…
While it may be an evidentiary challenge for a court to determine if ballots never cast because of wrongful disenfranchisement would have yielded a different outcome, it is not necessarily impossible. The names and addresses of disenfranchised voters may be identifiable, based on records of their timely absentee ballot requests (and documentation of the too-late date on which the government sent them their ballots). Statistical analysis of the precincts in which these disenfranchised voters reside may yield a high probability that the missing votes, if added to the reported tallies, would have overtaken the apparent margin of victory. Although this kind of statistics might not be enough to award the election to a different candidate than the apparent “winner,” it should suffice for judicial invalidation of the reported result (a point that the ALI project emphasized in section 213(g) of its principles).