“Failing to Respect the Passive Virtues: A Critique of RNC v. DNC”

The following is a guest post from Bill Whitford, professor emeritus at the University of Wisconsin Law School.

The United States Supreme Court did not need to reach a definitive decision in the recent lawsuit concerning the rules governing absentee ballots in Wisconsin’s April election. In acting precipitously the Court gave itself inadequate time to study a complicated record and to consider the views of many others on a novel question of election law. It reached a decision that creates a precedent questionable on its merits, with an opinion widely criticized as an inadequate justification. The Court as a practical matter will not likely be able to review and revise the precedent at a later time, and as a result courts will not have available a relatively modest tool for protecting citizens’ voting rights when jeopardized by unexpected circumstances such as the current pandemic.

In Republican National Committee v. Democratic National Committee the District Court, after two weeks of pleadings and hearings, entered its definitive order on Thursday, April 2nd. There was an immediate appeal and on Friday, April 3rd, the 7th Circuit, without oral argument, issued an unsigned opinion overturning important parts of the District Court’s order but sustaining its order postponing the deadline for the casting and receipt of absentee ballots until April 13th at 4 pm, which was six days after the day for in person voting (April 7th).1 The Republican National Committee applied the very next day (April 4th, a Saturday) to Justice Kavanaugh, the supervising Justice for the 7th Circuit, for a stay of that part of the District Court order, left untouched by the 7th Circuit, that allowed absentee ballots to be postmarked or delivered by hand after April 7th. The respondents filed a responsive pleading on Sunday, April 5th, which among things contested many factual statements made in the application for a stay respecting the District Court’s order and the record. Applicants filed a reply the same day and the Supreme Court’s order and decision came down on Monday afternoon, April 6th, the day before the election.

In these rushed circumstances the Court did not have much time for deliberation, let alone the benefit of oral argument. Though the Justices have many law clerks, they did not have time to resolve all of respondents’ claims about applicants’ misrepresentations of the District Court order and the record. One key mistaken factual assumption is detailed in a footnote.2 The Court also did not have the benefits of the views of the many organizations who commonly file amici briefs in important election law cases. Because the issue presented was a novel one, there had not been opportunity for other courts to grapple with the issue, and obviously the 7th Circuit had given it only cursory consideration.

The applicants had already had one bite at appellate review, in the Seventh Circuit, and they were even partially successful. A simple denial of the stay without opinion would have been consistent with what happens to most applications for a stay to the Supreme Court. And it is what I think should have happened here.

If, however, the Supreme Court believed it was important to preserve its ability to decide the issue if it proved consequential to the election result, it could have directed that the election clerks separate the ballots postmarked (or delivered by hand) after election day, perhaps even delaying counting them until it could be determined whether they could impact the election outcome. In the unlikely event that these ballots proved consequential to the result, the decision whether to count those ballots would then have been determined at a later time, when greater deliberation would have been possible. And in the more likely (and actual3) event that the votes on the ballots cast post-election could not impact the result, then we would not have any Supreme Court precedent or opinion on this issue, let alone the unfortunate one that we must now live with.

My deepest concern about the opinion that was issued is that it has very likely foreclosed modest adjustments in election adjustments when future courts are faced with elections where circumstances like the pandemic are impacting the ability to vote. The petitioners sought a delay in the election, a remedy the District Court found too extreme, but it adopted a couple of much more modest adjustments in Wisconsin election procedures designed to make it easier for voters to cast absentee ballots (and hence avoid the health risks of voting in person). One, not discussed here, was thrown out by the 7th Circuit, unfortunately in my opinion, and the other was partly thrown out by the Supreme Court.

The Court was careful to state that it “should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate.” But it is hard to imagine what other than deferral of an election the Court has in mind. It stated that votes cast after election day would “gravely impact the integrity of the election process”. It offered no explanation about what the “grave” injury would be, nor citation of any support.4 But going forward I think the Court’s opinion will be understood as foreclosing the route the Wisconsin District Court took, when unexpected events jeopardize the right to cast ballots in an election. In similar circumstances it simply will not be practical for a party to bring a case all the way to the Supreme Court to challenge the apparent holding in this case.5 I will close with a reflective observation. I am a retired law professor. My academic specialties did not include constitutional or election law, though I have always been interested. I attended law school in the early 1960s where my constitutional law professor was Alexander Bickel, then in the process of publishing his best known book, The Least Dangerous Branch. In the book Bickel prescribed, for the U.S. Supreme Court particularly, what he called the passive virtues. There were several, but by far the most important was the Court’s almost unique power to decide not to decide. To Bickel it was also very important that the Court act to preserve its reputation for making its decisions on the basis of principle. It does not enhance that reputation when the only five Justices appointed by Republican presidents take hasty, unnecessary, and not well defended, action at the behest of the Republican National Committee. I have no evidence, and do not mean to suggest, that the Justices were so motivated, but excuse me for noting that others have reached contrary conclusions, as was fully predictable.6 And it did not have to be that way.

1 The 7th Circuit’s decision can be found at https://www.wpr.org/sites/default/files/7th_circuit_20200403_order.pdf. Though the brief opinion does not expressly address that part of the District Court’s order postponing the deadline for the casting as well as the receipt of absentee ballots until April 13th, it is clear the 7th Circuit approved of that part of the order. The District Court order had set aside the state requirement of a witness to the signature on an absentee ballot when the voter lived alone and could not easily arrange for a signature during the “shelter in place” order. Part of the 7th Circuit’s rationale for overturning this part of the District Court’s order was that the extension in time for casting an absentee ballot would make it easier for voters living alone to somehow find the witness needed to qualify an absentee ballot.

2 In its opinion the Court emphasized that by extending the time for receipt of absentee ballots until April 13th, an extension the Supreme Court did not alter, voters could postmark their absentee ballots as late as April 7th and still have them count. It then said “[t]hat extension was designed to ensure that the voters of Wisconsin can cast their ballots and have their votes count.”  The statement entirely ignores voluminous evidence in the record, emphasized in the responsive filings by the petitioners in the Supreme Court, that many voters would not even receive their absentee ballots before April 7th, because election clerks had become overwhelmed by the many absentee ballot requests received, as well as other problems brought on by the pandemic, and because of Post Office slowdowns. We now know that those expectations were realized. Broad failures fueled Wisconsin’s absentee ballot crisis, investigation shows Milwaukee Journal Sentinal, April 21, 2020 (available at https://www.jsonline.com/story/news/2020/04/21/wisconsin-absentee-ballot-crisis-fueled-multiple-failures/5156825002/).

There are other parts of the Supreme Court’s majority opinion that illustrate inadequate study and understanding of the pleadings and record, including its strange emphasis on Petitioners’ failure to specify a delay in the casting of absentee ballots in its original pleading. The specific request was later made, deemed appropriate because it fit under a request for other appropriate relief in a petition in which the primary request was for deferral of the entire election, and was explicitly addressed in the District Court opinion.

3As we now know, in the only statewide election, which was the only election that sparked the interest of the Republican or Democratic National Committees, there was a landslide decided by a margin of over 150,000 votes. By the time the Supreme Court acted, the deadline for applying for absentee ballots had already passed. The total number of unreturned absentee ballots in the election exceeded 200,000, but only a small portion of those would have been returned and counted if the District Court’s order had stood. And those that were would not all have been cast for the losing condidate. For data on absentee ballots in Wisconsin’s election, see https://elections.wi.gov/blog.

4The quoted statement was made after the Court cast doubt on the workability of the District Court’s order that election day results not be counted or reported until after the extended date it set (April 13th) for return of absentee ballots. This doubt reflected concerns expressed in the applicants motion for a stay, but they turned out to be totally misplaced. The morning of the 13th, before election clerks began counting and reporting results, what was known was that Milwaukee turnout was down, largely because of the limited number (5 in total) of in person voting locations, and Democrats were preparing possible lawsuits challenging the results of an election it turned out they won in a landslide.

5 If an election is postponed in the future, it will raise very difficult questions about what to do with absentee ballots cast before postponement, since the rescheduled election would be several weeks later and earlier voters would not be able to weigh later occurring events in deciding for whom to vote.

6 Interestingly, the unanimous 7th Circuit panel decision in this case was issued without identifying the judges who were assigned (presumably randomly) to the panel. Perhaps the reason was precisely to make it more difficult to assign political motives to the decision they reached. Presumably that would not have been an option for the 7th Circuit if their decision had not been unanimous.

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