Why Was Election in Pandemic Required?

A voter waiting in line at Washington High School. Photo by Jeramey Jannene.

On April 6, 2020, both the US and Wisconsin Supreme Courts issued opinions concerning the election scheduled for the following day. Both shot down efforts to give Wisconsin voters alternatives to appearing in person to vote the next day in the face of an expanding coronavirus pandemic. Rarely have two rulings been so important or deserved more scrutiny, given that people’s lives were at stake.

In each of these decisions, there was an anonymously written majority opinion and a dissent. In each, those justices in the majority had been appointed by Republicans. Each of the dissenters was appointed by a Democrat. To what extent was the difference due to differing legal philosophies among conservative and liberal judges and how much to pure partisanship? You be the judge.

The case before the US Supreme Court, called Republican National Committee v. Democratic National Committee, challenged a ruling by District Judge William Conley. In response to delays in getting absentee ballots to voters, he ordered that voters be given an extra six days to return absentee ballots.

In an unsigned (“per curium”) ruling, five justices reversed Conley. The five members of the majority were John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett M. Kavanaugh.

The dissent consisted of Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Ginsburg wrote the dissent.

The decision rendered by the Wisconsin Supreme Court, called Wisconsin Legislature v. Evers, challenged Executive Order No. 74 which would have suspended in-person voting for the election scheduled the following day, delayed the election and made other changes in support of those actions.

In the majority were Patience Roggensack, Annette Ziegler, Rebecca Bradley and Brian Hagedorn. As with the US Supreme Court decision, no author is listed.

Dissenting were Ann Walsh Bradley and Rebecca F. Dallet. Bradley authored the dissent.

How did the justices at each level view the cases?

The majority in both cases wanted the case to be treated as a routine one. Here is the US court:

The question before the Court is a narrow, technical question about the absentee ballot process.

In response, Ginsberg advanced a very different view:

The majority of this Court declares that this case presents a “narrow, technical question.” … That is wrong. The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic.

Similarly, the Wisconsin Supreme Court majority aims to make its case merely a technical one:

The question presented is not whether the policy choice to continue with this election is good or bad, or otherwise in the public interest. The dissent’s arguments are focused largely on this policy rationale. Rather, the question presented to this court is whether the Governor has the authority to suspend or rewrite state election laws.

By contrast, for Ann Bradley, the impact on Wisconsin voters is front and center:

Offering scant rationale for its misguided orders granting a temporary injunction …, the majority gives Wisconsinites an untenable choice: endanger your safety and potentially your life by voting or give up your right to vote by heeding the recent and urgent warnings about the fast growing pandemic.

The US court majority cites the Purcell principle with approval, saying “This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”

In response, Ginsberg points out:

If proximity to the election counseled hesitation when the District Court acted several days ago, this Court’s intervention today—even closer to the election—is all the more inappropriate.

The US Supreme Court majority accuses the district judge of causing “judicially created confusion” by “extending the date by which ballots may be cast by voters.” Ironically, the majority itself creates the only confusion due to its failure to recognize that many absentee ballots would arrive without postmarks. As Ginsburg points out, neither the original due date of April 7 nor the court’s revised April 13 “carried a postmark-by requirement.”

The US court majority’s prediction

The majority described the District Court’s orders enjoining the public release of any election results before the deadline of April 13 as enjoining “nonparties to this lawsuit.” It is unclear who the “nonparties” are meant to be. The press? The majority goes on to make a prediction: “It is highly questionable, moreover, that this attempt to suppress disclosure of the election results for six days after election day would work.” Despite this prediction, there was no leak of election results.

Does the law compel the result?

It unclear after reading the US court’s majority opinion exactly what it is that they find objectionable about the Judge Conley’s order. The closest I can find is this:

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.

Apparently, the second sentence is their biggest issue since they write it four times, three in a single paragraph. And as several reports in the media have noted, it is false. As Ginsberg wrote: “…unheeded by the Court, although initially silent, the plaintiffs specifically requested that remedy at the preliminary-injunction hearing in view of the ever-increasing demand for absentee ballots.”

The Wisconsin Supreme Court majority argues that by delaying the election and making accompanying actions, Governor Evers goes beyond the powers granted to him by section 323, the part of Wisconsin statutes addressing emergencies.

Pointing to section 323.12(4)(d), allowing the governor to “issue such orders as he or she deems necessary for the security of persons and property” during emergencies, Ann Bradley disagrees:

On the heels of this executive order, the majority of this court looks reality in the face, but then turns the other way. Risking the health of our families, neighbors and friends, the majority mandates that in-person voting in Wisconsin’s election must occur tomorrow, April 7. In justifying its decision, the majority states that the law compels such a result.

Nonsense. Neither the law nor common sense support the majority’s tenuous and callous order.

Is the elephant in the room acknowledged?

In recent years, Republican politicians, from Donald Trump on down to Robin Vos and Scott Fitzgerald, have embraced the belief that suppressing voting is good for Republicans. That is why Evers failed to get support from Wisconsin’s legislative leaders to switch to a mail-in ballot election only. It explains why a few more days for absentee ballots to arrive was threatening to the Republican National Committee.

Yet only Ann Bradley acknowledges the connection:

These orders are but another example of this court’s unmitigated support of efforts to disenfranchise voters.

This month’s election results suggest that Republicans might be wise to rethink that strategy.