Breaking and Analysis: Supreme Court, on 5-3 Party Line Vote, Won’t Restore Wisconsin Ballot Deadline Extension; Justices Fight in Footnotes over Pennsylvania State Court Issue

On a 5-3 party line vote, the Supreme Court rejected Democrats’ and voting rights groups attempts to reverse the 7th Circuit putting the brakes on a district court order that would have extended the deadline for receipt of absentee ballots postmarked by election day and received for up to six days after election day. All of the Republican-appointed Justices voted against extending the deadline; all of the Democratic-appointed Justices voted to allow the extension.

There was no majority opinion. The principal concurrence came from Justice Kavanaugh, who not only advanced a very strong notion of the Purcell principle but also argued extensively that federal courts should not be second guessing state decisions about how to balance health and voting during the pandemic. (Justice Gorsuch in a separate brief dissent made similar points about federal court authority.) But Justice Kavanaugh went even further and found that there would be no disenfranchisement, engaging in a kind of reweighing of the evidence to show that Wisconsin voters would have ample opportunity to vote by mail without the extension.

Justice Kagan wrote the sole dissent. In some ways, she echoed Justice Ginsburg’s earlier dissent in the RNC v. DNC case, which saw the risk of disenfranchisement with the failure to extend voting rules during Wisconsin’s primary. But Justice Kagan’s analysis went further, attacking the strong reading of the Purcell Principle and echoing the main point I made in my “Reining in the Purcell Principle” law review article:

At its core, Purcell tells courts to apply, not depart from, the usual rules of equity. See, e.g., Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 24 (2008) (“In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief” (internal quotation marks omitted)). And that means courts must consider all relevant factors, not just the calendar. Yes, there is a danger that an autumn injunction may confuse voters and suppress voting. But no, there is not a moratorium on the Constitution as the cold weather approaches. Remediable incursions on the right to vote can occur in September or October as well as in April or May.

The result in this case is not a surprise; in every case that Court has considered this election cycle where a federal court has extended a voting rule over state objection, the state has won (often, but not always, along a party line vote). Indeed, I was surprised that Wisconsin plaintiffs decided to take this case up. Doing so risked making more bad law, which is what this case just did.

Perhaps of greatest importance in this case, however, is not the (unsurprising) holding or party-line split but instead the fight over the issue in the Pennsylvania case: what happens when it is a state court, not a federal court, extending voting rights during the pandemic. Three of the Justices weighed in on this. Justice Kavanaugh dropped an extensive footnote, citing Bush v. Gore (!), arguing that state courts too are limited in extending voting rights even during a pandemic and even in reliance on a state constitution if a state legislature objects:

A federal court’s alteration of state election laws such as Wisconsin’s differs in some respects from a state court’s (or state agency’s) alteration of state election laws. That said, under the U. S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal
elections. Article II expressly provides that the rules for Presidential
elections are established by the States “in such Manner as the Legislature thereof may direct.” §1, cl. 2 (emphasis added). The text of Article
II means that “the clearly expressed intent of the legislature must prevail” and that a state court may not depart from the state election code enacted by the legislature. Bush v. Gore, 531 U. S. 98, 120 (2000)
(Rehnquist, C. J., concurring); see Bush v. Palm Beach County Canvassing Bd., 531 U. S. 70, 76–78 (2000) (per curiam); McPherson v. Blacker,
146 U. S. 1, 25 (1892). In a Presidential election, in other words, a state
court’s “significant departure from the legislative scheme for appointing
Presidential electors presents a federal constitutional question.” Bush v.
Gore, 531 U. S., at 113 (Rehnquist, C. J., concurring). As Chief Justice
Rehnquist explained in Bush v. Gore, the important federal judicial role
in reviewing state-court decisions about state law in a federal Presidential election “does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures. To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II.” Id., at 115.


The dissent here questions why the federal courts would have a role in
that kind of case. Post, at 11, n. 6 (opinion of KAGAN, J.). The answer to that question, as the unanimous Court stated in Bush v. Palm Beach County Canvassing Bd., and as Chief Justice Rehnquist persuasively explained in Bush v. Gore, is that the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.

Justice Kagan briefly objected to this analysis, believing this issue controlled by the recent Arizona redistricting ruling (where the Chief Justice dissented, before he had a more conservative majority for the Court):

At the same time that JUSTICE KAVANAUGH defends this stance by
decrying a “federal-judges-know-best vision of election administration,”
ante, at 10, he calls for more federal court involvement in “reviewing
state-court decisions about state [election] law,” ante, at 9, n. 1. It is hard
to know how to reconcile those two views about the federal judiciary’s
role in voting-rights cases. Contrary to JUSTICE KAVANAUGH’s attempted
explanation, neither the text of the Elections Clause nor our precedent
interpreting it leads to his inconstant approach. See Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. 787,
817–818 (2015); Smiley v. Holm, 285 U. S. 355, 372 (1932).

Chief Justice Roberts, who sided with the liberal Justices the first time this issue came up in the Pennsylvania context, just broadly stated that cases coming from federal and state courts present different issues:

In this case, as in several this Court has recently addressed, a District Court intervened in the thick of election season to enjoin enforcement of a State’s laws. Because I believe this intervention was improper, I agree with the decision of the Seventh Circuit to stay the injunction pending
appeal. I write separately to note that this case presents different issues than the applications this Court recently denied in Scarnati v. Boockvar, ante, at , and Republican Party of Pennsylvania v. Boockvar, ante, at . While the Pennsylvania applications implicated the authority of state
courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes. Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of
election rules in Pennsylvania but not Wisconsin.

What does all this mean for the pending request to expedite the cert. petition in the Pennsylvania case? It is hard to say, because in that case there are serious reliance interests based upon the earlier state ruling and there’s a serious standing question for the PA GOP requesting intervention.

[This post has been updated.]

Further update:

This is also worth highlighting from today’s dueling opinions.

Justice Kavanaugh:

For important reasons, most States, including Wisconsin, require absentee ballots to be received by election day, not just mailed by election day. Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.

Justice Kagan:

JUSTICE KAVANAUGH alleges that “suspicions of impropriety” will result if “absentee ballots flow in after election day and potentially flip the
results of an election.” Ante, at 7. But there are no results to “flip” until
all valid votes are counted. And nothing could be more “suspicio[us]” or
“improp[er]” than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is
to disserve the electoral process.

One more update:

I also think it is interesting that J. Gorsuch (and the other conservatives) did not join Kavanaugh’s concurrence.  Though J. Gorsuch did say this on the independent state legislature doctrine:

The Constitution dictates a different approach to these how-much-is-enough questions. The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules. Art. I, §4, cl. 1. And the Constitution provides a second layer of protection too. If state rules need revision, Congress is free to alter them. Ibid. (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . ”). Nothing in our founding document contemplates the kind of judicial intervention that took place here, nor is there precedent for it in 230 years of this Court’s decisions.

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