The Biggest Problem with the Supreme Court’s Opinion in the Wisconsin Voting Case Was Not the Result (Which Was Still Wrong), But the Court’s Sloppiness and Nonchalance About Voting Rights and What That Means for November | Election Law Blog

The Biggest Problem with the Supreme Court’s Opinion in the Wisconsin Voting Case Was Not the Result (Which Was Still Wrong), But the Court’s Sloppiness and Nonchalance About Voting Rights and What That Means for November | Election Law Blog: 

by Rick Hasen (UCLA)

There has been a ton of commentary on the Supreme Court’s split decision in the Wisconsin voting case, which reversed a district court order allowing absentee ballots received by April 13 whether or not they were postmarked by the April 7 election date to count toward the election, and I hesitate to add to it. But I think there’s something really important to be said not about what the Court decided but about how it decided it. The district court issued its order because, thanks to the coronavirus pandemic, well over 1 million Wisconsin voters had requested absentee ballots (more than 4 times the usual number of requests). 

This led to a backlog of requests and problems with postal service handling of ballots, meaning many voters (we are still trying to figure out how many, but in the thousands) did not received their ballots by April 7 in order to vote them and get them postmarked in time. It is very easy to criticize the Court’s 5-4 decision (with all the Republican-appointed Justices siding with Republicans to not allow the late-arriving ballots to count, and all the Democratic-appointed Justices dissenting and siding with Democrats) as the product of simple partisan infighting. 

At best, the decision could charitably be explained, as Rick Pildes told NYT’s Adam Liptak, as reflecting the Justices’ ideological rather than partisan commitments: ““I’d say ‘liberal’ judges are more comfortable with federal courts crafting what they see as pragmatic, ad hoc responses to extraordinary election circumstances,” he said, “while ‘conservative’ judges believe that federal courts should retain as much of the pre-existing rule structure — such as that absentee ballots must be postmarked on or before Election Day — as possible.” 

 I think the Court reached the wrong decision, but the matter is closer than some people say. While the district court didn’t frame it this way, it essentially extended the absentee voting period for a few additional days, allowing anyone who received a ballot to vote after the April 7 election day so long as the ballot was received before April 13. 

 There is much to be said for courts sticking to the rules as written before the election, because later decisions by courts can help (and be seen as helping) one side or another; and clear election rules should be followed barring extraordinary circumstances. The main Court error in its decision, in my view, was that the Court failed to recognize the truly extraordinary circumstances of the pandemic’s effect on the public health, and the failure of political actors in Wisconsin (primarily the Republican legislature, but also the Democratic governor who inexplicably dragged his feet until at the very last minute seeking to postpone the election) to act. 

This put many voters who did not receive absentee ballots in the horrible position of having to choose serious health risks or become disenfranchised. (Already Wisconsin health investigators are looking at whether people may have contracted the virus while voting.) Application of the Purcell Principle should be suspended when an emergency not of the parties’ own making causes a court to issue a last minute election order. But the Court’s decision is far from the worst of what the Court did; much of the disenfranchisement in Wisconsin is at the foot of Wisconsin political actors (and the Wisconsin Supreme Court, which also along party lines split over the Governor’s last minute attempt to try to delay the election). Far worse than its decision was its opinion.

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