“Wisconsin’s Decision to Have an Election This Month Was Unjust, But Was it Also Unconstitutional? Why the Plaintiffs (Rightly) Lost in the Supreme Court”

At Verdict, Dean Vik Amar and Professor Jason Mazzone have a piece which focuses not on what the right federal-court remedy in the Wisconsin litigation was, but whether there was any substantive federal constitutional violation in the first place. This issue has implications for a lot of the expected federal-court litigation that will take place surrounding this year’s election. Here is an excerpt:

[We want ] to examine a much more fundamental question: was there, to use the language we do above, “a strong and imminent likelihood of a federal violation (constitutional or statutory)” for the district judge in Wisconsin to provide any remedy concerning absentee voters? If the answer to that question is “no,” then the Supreme Court’s ruling was correct. . . .

It is remarkable how little attention the district court devoted to the merits of the claim concerning the asserted difficulties of the absentee voters. The court spent only a little more (or less, depending on how you count) than one page of its opinion explaining why the plaintiffs were likely to succeed in their constitutional challenge in this respect. The district court’s legal discussion consisted basically of its citation to two Supreme Court cases laying out a general test of burden-on-voter vs. justification-by-state, and then one district court case (which is obviously not binding) from another state affording relief in arguably similar circumstances. However, the two cases from the Supreme Court involved not election administration but ballot access by candidates, and so are not particularly relevant to evaluating the challenge brought against the Wisconsin election rules. Indeed, more generally, the cases in which the Court has over the decades rigorously demanded substantial state justifications and careful tailoring in the voting arena involve primarily (perhaps almost exclusively) rules that: (1) concern requirements for voter or candidate eligibility; (2) weigh ballots that are cast unequally; (3) reflect intentional or practical discrimination on account of race; or (4) implicate congressional statutes prescribing particular requirements for elections of federal officials.

The Wisconsin dispute involved none of these issues but instead centered on the mechanics of how a state administers its elections on the ground. . . .

The U.S. Supreme Court case in recent times that focuses most squarely on the logistics and administration of state elections is Crawford v. Marion County Election Board. That case involved an unsuccessful challenge in 2008 to Indiana’s requirement that voters demonstrate their identity to vote. In rejecting the challengers’ claims, six justices (including Justice Stevens) agreed that, at the very least, “even-handed restrictions” promoting the “integrity and reliability of the electoral process itself” satisfy constitutional standards.

Wisconsin’s own requirement that ballots be received (and its corollary implicit requirement that they be cast) by Election Day is certainly “even-handed.” And no one could easily deny that the goals of securing election results as soon as possible and avoiding unnecessary risk that some people might vote after knowing provisional election results go to the “integrity and reliability of the electoral process itself.”

The district court spent no time analyzing Marion County, or indeed even trying to figure out which category of voting cases from within the Supreme Court’s voting rights jurisprudence was the most appropriate from which to draw guidance. Instead the court simply laid out an unguided balancing test from cases involving voter qualifications and ballot access and determined that Wisconsin could ignore its state-law requirements without losing too much. To repeat the court’s language: “The state’s general interest in the absentee receipt deadline is not so compelling as to overcome the burden faced by voters who, through no fault of their own, will be disenfranchised by the enforcement of the law.”

The district court also failed to analyze carefully what its reasoning would mean for state election law generally. For example, what if a state simply chose not to provide for absentee ballots? As far as we know, the Supreme Court has never suggested that voters must have the option of casting their ballots by mail. If the Constitution imposed such a requirement then wouldn’t the procedures of “caucus” states, where people must attend and participate in person to have their input counted, be problematic? And putting aside the caucus device, if a state decided not to permit absentee (or any other mail-in) ballots (except perhaps as required by federal statute) and instead required in-person voting for all, wouldn’t enforcement of its law also “disenfranchise” many people who for whatever reason can’t vote in person?

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