The U.S. Supreme Court tonight issued an order setting the rules for tomorrow’s elections in Wisconsin. There is absolutely no justification for holding an election right now in the midst of a pandemic, but I will leave aside for the moment the allocation of blame for that feckless decision among Wisconsin’s Democratic governor Tony Evers, its Republican-controlled legislature, and Bernie Sanders for keeping the presidential primary race (not the only one on the ballot tomorrow) alive, and focus on the problem as the Court faced it.
Under normal circumstances, Wisconsin law requires absentee ballots to be received by Election Day. Not one of the nine Justices argued for enforcing the law that was actually written by the legislature. Both the 5–4 conservative majority (in an unsigned order that was probably written by Justice Kavanaugh, who received the emergency application) and Justice Ginsburg’s dissent agreed that the Court should extend the deadline for absentee ballots beyond what the law provides, allowing more votes to be counted. With just an evening to decide the case the night before the election, no written election law to guide them, and not even the Court’s customary ability for the Justices to meet in person, it is not surprising that the resulting decision was sloppy on all sides.
It would have been better to keep the courts out of the case entirely, but that was not an option here: A single federal district judge had extended the deadline until April 13, a week after the election. Had the Court refused the case, the election laws of Wisconsin would have been rewritten by one judge instead of nine. Even the plaintiffs in the suit had not asked for the April 13 date or presented evidence to support it. The majority, reiterating the core problem with judge-made ad hoc election laws that drove its decision in Bush v. Gore, would have none of this:
Importantly, in their preliminary injunction motions, the plaintiffs did not ask that the District Court allow ballots mailed and postmarked after election day, April 7, to be counted. That is a critical point in the case. Nonetheless, five days before the scheduled election, the District Court unilaterally ordered that absentee ballots mailed and postmarked after election day, April 7, still be counted so long as they are received by April 13. Extending the date by which ballots may be cast by voters—not just received by the municipal clerks but cast by voters—for an additional six days after the scheduled election day fundamentally alters the nature of the election. And again, the plaintiffs themselves did not even ask for that relief in their preliminary injunction motions. Our point is not that the argument is necessarily forfeited, but is that the plaintiffs themselves did not see the need to ask for such relief. By changing the election rules so close to the election date and by affording relief that the plaintiffs themselves did not ask for in their preliminary injunction motions, the District Court contravened this Court’s precedents and erred by ordering such relief. This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.
(Emphasis added.) The Court also noted that the district court’s judge-made election law was impractical because it required an order attempting to suppress news of the results (among other things, requiring an extensive prior restraint of speech) while people kept voting after Election Day. Thus, it allowed ballots to be postmarked as late as tomorrow, even if received after the legal deadline — but no later. This is the kind of decision that courts are unsuited to make. But the Court simply did not have the option of doing the right thing, which is to tell the legislature to live with the rules as written or fix them. Getting the case the night before Election Day with a pandemic ongoing and nobody trying to act responsibly to postpone the election, the Court selected what it considered the least of evils. It did leave the door open for the legislature to pass new laws, if it could get its act together with the governor at this late hour.
Justice Ginsburg was outraged that this would deprive some people of the vote, given that nobody really expected a few weeks ago that the election would go forward with nobody able to vote in person. Her complaints are entirely reasonable ones, if directed at the political officials involved, but the Court took her to task for completely ignoring the evidence and the legal posture in which the case reached the Court:
The dissent is quite wrong on several points. First, the dissent entirely disregards the critical point that the plaintiffs themselves did not ask for this additional relief in their preliminary injunction motions. Second, the dissent contends that this Court should not intervene at this late date. The Court would prefer not to do so, but when a lower court intervenes and alters the election rules so close to the election date, our precedents indicate that this Court, as appropriate, should correct that error. Third, the dissent refers to voters who have not yet received their absentee ballots. But even in an ordinary election, voters who request an absentee ballot at the deadline for requesting ballots (which was this past Friday in this case) will usually receive their ballots on the day before or day of the election, which in this case would be today or tomorrow. The plaintiffs put forward no probative evidence in the District Court that these voters here would be in a substantially different position from late-requesting voters in other Wisconsin elections with respect to the timing of their receipt of absentee ballots. In that regard, it bears mention that absentee voting has been underway for many weeks, and 1.2 million Wisconsin voters have requested and have been sent their absentee ballots, which is about five times the number of absentee ballots requested in the 2016 spring election. Fourth, the dissent’s rhetoric is entirely misplaced and completely overlooks the fact that the deadline for receiving ballots was already extended to accommodate Wisconsin voters, from April 7 to April 13. Again, that extension has the effect of extending the date for a voter to mail the ballot from, in effect, Saturday, April 4, to Tuesday, April 7.
This is a sloppy and not especially principled decision by the Court’s conservatives, but the options were awful and the dissent’s approach completely lawless. It should never have come to this.