No, The Supreme Court Did Not Just Help Rig The Wisconsin Election

Few per curiam opinions have generated as much heat from both dissenting justices as well as the media. The decision of the Supreme Court to reverse the decision of a district court judge on extending the voting for the Wisconsin election this week has generated breathless headlines and comparisons to the Bush v. Gore decision in the 2000 elections. Such hyperbolic language aside, the decision was actually quite narrow and well-supported. Moreover, the dissent is chastising the majority for denying relief that the Wisconsin Democrats never requested from the District Court in their original preliminary injunction motion.

The issue in Republican National Committee v. Democratic National Committee was not whether an election would be held this week in Wisconsin. Recently, the Wisconsin Supreme Court blocked Gov. Tony Evers’ late executive order postponing in-person voting in Tuesday’s elections — specifically postponing the state’s presidential primary and hundreds of local elections. Evers’ took the unilateral action after he was refused his request by a special legislative session.

Evers’ decision of hopelessly conflicted, much like the U.S. Supreme Court case by Wisconsin Democrats. Evers previously admitted that “my hands are tied” in ordering a delay of the election and the legislature would have to do so. It then proceeded to refuse to do so. Evers then declared that he had the authority after all. However, his authority was transparently weak. He relied on general language in the state constitution that “establishes the purpose of State Government is to insure domestic tranquility and promote the general welfare.” He also cited a state law that gives the governor powers during an emergency to “issue such orders as he or she deems necessary for the security of persons and property.”  

Neither of those laws gives him the right to suspend elections — a dangerous power that would allow a governor to suspend democracy itself on both a state and federal level. He was right the first time. He does not have that express unilateral authority under existing law. I am sympathetic to the arguments for postponing the election in light of the pandemic. It seems to me an unnecessary risk and forces citizens to choose between minimizing their exposure and declining to participate in the election. While they can vote by absentee, this has been a very unsettled time for most voters and many did not anticipate staying a home so long. However, this is ultimately a question for the state legislature.

Much of the coverage has suggested that the U.S. Supreme Court was deciding on the holding of the election. It was not. Indeed, the appeal was not only narrower but also conflicted. The federal appeal only deals with the counting of absentee ballots postmarked after April 7, 2020 election. However, the deadline for clerks to receive the ballots had already been extended from Tuesday, April 7, to Monday, April 13. Thus, the only question was whether absentee ballots could be mailed and postmarked after election day. The District Court ordered that people could vote after the election day so long as the ballots were received by April 13th — thus they could be postmarked after April 7th. However, the Democrats never asked for that relief in their motion. The district court not only went beyond the motion but ordered that no results of the election be announced pending the arrival of the late votes. This amounted to an extraordinary level of judicial intervention into an election on the very eve of that election. The majority of the Court balked at the action and reversed the district court.

The issue therefore is whether it was appropriate for a district court to go beyond the requested relief and allow for an extension not just of the receipt of ballots but actual voting. Justice Brett Kavanaugh wrote for the majority that:

“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. . . . The unusual nature of the District Court’s order allowing ballots to be mailed and postmarked after election day is perhaps best demonstrated by the fact that the District Court had to issue a subsequent order enjoining the public release of any election results for six days after election day. In doing so, the District Court in essence enjoined nonparties to this lawsuit. It is highly questionable, moreover, that this attempt to suppress disclosure of the election results for six days after election day would work. And if any information were released during that time, that would gravely affect the integrity of the election process. The District Court’s order suppressing disclosure of election results showcases the unusual nature of the District Court’s order allowing absentee ballots mailed and postmarked after election day to be counted. And all of that further underscores the wisdom of the Purcell principle, which seeks to
avoid this kind of judicially created confusion.”

The dissent written by Justice Ruth Bader Ginsburg insists that the decision is preventing “tens of thousands of Wisconsin citizens” from voting:

“The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. With the majority’s stay in place, that will not be possible. Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own.”

However, the dissent ignores that this was relief not requested in the motion by the Democrats and that the date for receipt of ballots has already been extended. Moreover some 1.2 million Wisconsin voters have requested and have been sent their absentee ballots. That is, as noted by the majority, roughly five times the number of absentee ballots requested in the 2016 spring election. More importantly, this is not about the wisdom of the decision on holding the election but the authority or wisdom of the courts to intervene at such a late hour. Citizens need only put their ballots in the mail before or on election. Wisconsin decided that that was fair with the extension of the period for receipt of the ballots. The Democrats did not see this requirement as so onerous or wrong as to ask that it was negated in their original motion.

While Ginsburg suggested that many voters will not get their ballots in time, the majority noted that there was no substantive support or data to support that claim in the record. To the contrary, the majority relied on countervailing information to suggest that most would indeed receive ballots before or on election day and further argued that this concern is present in any election with mailed absentee ballots. Again, one can take either opposing view but the courts must rely on the record to establish such facts if they are to be treated as determinative.

Nevertheless, the Wisconsin Democratic Chair Ben Wikler tweeted “I am about to explode. . . . The Supreme Court of the United States legislated from the bench today.” Yet, that is what the majority felt it was avoiding in limiting the power of the lower court. The Wisconsin legislature met in special sessions and did not pass such relief. So who is legislating in granting relief not accepted by the legislature — and not even asked for by the Democrats in their original motion?

One can have a good-faith disagreement with the majority decision but this is not some raw partisan move — any more than the dissent was a raw partisan vote by liberal justices. There are fundamental questions here about the appropriate role of the courts, particularly when the legislature has made some accommodations while refusing others in light of the pandemic. Finally, this has nothing to do with the holding of the election, which was ordering by the Wisconsin Supreme Court. The blurring of the two cases shows how distorted legal analysis has become where such clear distinctions are lost to the blind rage of politics.

Here is the opinion: Republican National Committee v. Democratic National Committee

87 thoughts on “No, The Supreme Court Did Not Just Help Rig The Wisconsin Election”

  1. It’s blood on their hands. Plain and simple. Hell awaits for these idiots who voted to put people’s lives at risk during a pandemic as well as the crack that wrote this drivel. May Corona get you too… Let’s think the herd of this sort of stupidity.

  2. I am a bit surprised and disappointed that states do not already have a method in place to automatically shift to mail in ballots during a catastrophe. After all, we’ve always had hurricanes, floods, tornados, earthquakes, and pandemics. We’ve also had terrorism. Why in the world isn’t this process automatically tripped by some threshold?

    Why are legislators agonizing about simple things? There is a pandemic. The globe is on lockdown. The Earth stands stil. Of course, you vote by mail and do not have in person voting. Of course we should be well along in efforts to purge fraudulent, duplicate, or erroneous voters from the rolls. Of course we should already have outlawed ballot harvesting as obvious ways to tamper with the vote.

    Making little problems into big problems. It seems to be what politicians do.

  3. The Trump party does not want people to vote, 2018 midterms made clear to them if they can suppress and scrub voter rolls then they have a chance in 2020. And the five on the SCOTUS would be more than happy to appoint another President as they did in 2000. To the five, it’s always a state matter when it comes to voting, until it comes to their interests losing, then it’s a Federal matter.

  4. Why are Wisconsin Republicans So Adamant About Holding Tuesday’s Elections?

    It’s not just a presidential primary on the ballot in Wisconsin. Also at stake is the makeup of the Wisconsin Supreme Court — the very court that struck down Mr. Evers’s effort to delay Tuesday’s elections.
    Statewide races in Wisconsin tend to be close, and Supreme Court elections, which come with 10-year terms, are often even closer.

    Last year Brian Hagedorn, a conservative judge, defeated a liberal challenger by less than 6,000 votes out of 1.2 million cast. In 2011, another conservative, David T. Prosser Jr., won by 7,000 votes after officials in Waukesha County found 14,000 overlooked ballots the day after the election.

    For now, conservatives hold five of seven seats on the officially nonpartisan court. The incumbent in Tuesday’s contest, Justice Daniel Kelly, was appointed to replace Justice Prosser by Gov. Scott Walker in 2016 and is seeking his first full term. He faces Jill Karofsky, a liberal circuit court judge.

    President Trump has posted several messages on Twitter endorsing Justice Kelly in recent days.

    If Justice Kelly wins, it will cement the conservative majority’s ability to block future Democratic efforts to change the state’s strict voting laws and litigate an expected stalemate over congressional and state legislative boundaries during post-2020 redistricting.
    Liberals would need to flip just one of the conservatives’ votes if Judge Karofsky wins. Unless a justice retires or resigns, they would not have an opportunity to win a court majority until the 2023 elections.

    Edited From: “Wisconsin Election: Voters Find Long Lines And Closed Polling Sites”

    Today’s New York Times

  5. Republicans Argue Pandemic Should Have No Bearing On Election

    Because the state had been deluged with absentee ballot requests — causing some voters not to get their ballots in time — a federal judge had ordered the state to accept ballots postmarked for an additional six days. Republicans sued to get that ruling overturned and to force the election to go on as scheduled.

    Why were they so eager to have the election in the middle of this pandemic? The key race was for a seat on the state supreme court, which will help them solidify their conservative majority, which is in turn vital to maintaining the system of minority rule in Wisconsin. That includes the extraordinary partisan gerrymander of state legislative districts engineered by Republicans, a gerrymander so brutally effective that in the 2018 state assembly elections, Democrats won 53 percent of the votes but Republicans won 63 of the 99 seats.

    Republicans know their voters are more likely to have already voted absentee or live in less-populated areas where they can vote safely at a less-crowded polling place. Democrats, on the other hand, are being forced to literally risk their lives to vote. In Milwaukee, a city of 600,000 people, the number of polling places was reduced from 180 to five.

    Late Monday, the Wisconsin Supreme Court ruled that Evers didn’t have the authority to postpone the election, so it had to go forward.

    On top of that, in a 5-4 decision along party lines, the U.S. Supreme Court then overruled the federal judge’s previous decision, thereby requiring that only ballots postmarked by Tuesday could be counted.

    In her dissent, Justice Ruth Bader Ginsburg wrote, “The Court’s order requires absentee voters to postmark their ballots by election day, April 7 — i.e., tomorrow — even if they did not receive their ballots by that date,” she wrote. “That is a novel requirement.”

    She added that the majority’s insistence that the pandemic does not create a fundamentally different situation than ordinary elections “boggles the mind.”

    Edited From: “Wisconsin’s Election Nightmare Is Preview Of What Could Happen In November”

    Today’s Washington Post 

    1. If you lived in WI you would know that damn near every Wisconsinite was out of their house 2 out of the 3 days leading up to the election. Going to the poles will promote a better life in WI than not going. I went. It was quick, clean and a pleasure.

      1. But only 5 of 80(?) polling stations could be mustered in the largest urban zone of the state.
        Hmmmmmm……Who might that help>?

  6. Many Wisconsin voters requested absentee ballots by the deadline and still have not received them. Now, in order to exercise their franchise as every good American should, they have to put their lives in danger by voting in person. If one of them dies, that’s the Supreme Court’s fault, and they should face consequences for it.

    1. what if they die in a car accident on the way to the polls? is that now suddenly a social crisis too?

    2. That would be novel:a mass impeachment of the Court for manslaughter. I assume RBG and her fellow travellers would be exempted.

  7. Turley Is Being Sarcastic:

    Gerrymandered Wisconsin Totally Rigged!

    GOP Gov. Scott Walker lost his bid for re-election by roughly 1 percentage point Nov. 6 to Democrat Tony Evers.   

    Yet Walker carried 63 of the state’s 99 state Assembly districts.  

    In fact, the data show that 64 of the 99 districts are more Republican than the state as a whole, based on their vote for governor.

    In other words, Republicans enjoy a built-in 64-35 advantage in the partisan makeup of the 99 Assembly districts. In a hypothetical 50-50 election, in which there are equal numbers of Democratic and Republican voters in Wisconsin, no one crosses party lines and independents split down the middle, that translates into a massive 29-seat GOP advantage in the Assembly. That’s very close to the 27-seat margin (63-36) that Republicans won last month.  

    Every election since the current map was drawn has told the same story:

    Republicans enjoy a natural edge in the battle for the Legislature because Democratic voters are more concentrated geographically in urban areas, especially in Milwaukee and Madison, meaning their voting power is confined to a smaller number of districts.  
     The legislative map drawn by the GOP in 2011 added greatly to that natural Republican advantage. Under the old map, Democrats had to outperform the GOP by 2 or 3 points statewide to have a good shot at winning control of the Assembly.  But under the current map, Democrats need to out-perform the GOP by closer to 9 or 10 points statewide to have a good shot at winning an Assembly majority. 

    Aside from locking in Republican control, the gerrymandered map has almost killed off competitive Assembly elections. To maximize their partisan advantage, Republicans drew a minority of hugely lopsided Democratic districts (minimizing the impact of the Democratic vote) and a sizable majority of less lopsided but safe GOP seats. That leaves hardly any truly “purple” Assembly districts in this “purple” state. In the Nov. 6 election, only five of 99 Assembly races were decided by less than 5 points. Only two were decided by less than 3 points.

    Edited From: “New Election Data Highlights The Ongoing Impact Of 2011 GOP Redistricting In Wisconsin 

    The Milwaukee Journal-Sentinel, 12/6/18

      1. I thought we were a nation of “one person one vote”, not a nation of “screw you if you live in a city”

        1. The American Founders restricted the vote by requiring citizens to be “…free white person(s)…” then, through direct restrictions, requiring voters to be: Male, European, 21, Net Worth 50 lbs. Sterling or 50 acres, all of which represented “original intent.” Can you think of any good reason why that should have changed? We’re still in America, right?

  8. Also: please unbunch your collective panties. The actions and decisions are affecting a primary election. They are patently NOT affecting resident’s rights or abilities to ultimately elect their representation. Admittedly they do affect the actual candidates from the general election, but they are not installing by fiat any nasty, x-a-phobic, unhuman Republicans to any local, state, or federal office.

    There will still be plenty of opportunity to collect Democrat votes from cemeteries, just as usual. Don’t worry.

    1. KY Dave: you dont know what you’re talking about! This isnt Kentucky and you’ve read nothing about Wisconsin. Many state and local races will be decided in Wisconsin today; including a crucial seat on the Wisconsin Supreme Court. And ‘no’, not everyone will get a chance to vote. Consider this from today’s Milwaukee Journal-Sentinel:

      “A record 1.3 million Wisconsin voters requested absentee ballots by Monday but 43% of the voters who made requests hadn’t yet returned ballots, according to the Wisconsin Elections Commission”.

      1. I stand corrected. Thank you for that, Seth.

        A search of Wisconsin Elections Commission’s website shows that Justice of the Supreme Court, Court of Appeals Judge – Districts 1, 2 and 4, Circuit Court Judge in several counties, and a constitutional referendum on “Marsy’s Law” are indeed final decisions. However, I cold not find any other state-wide or federal offices listed beyond “preferences.”

        Is it possible that we’re both partially correct? Justices, judges, and referendum notwithstanding, what other ballot has implications for millions of state-wide voters? If I promise to do more due diligence research, will you commit to considering panty un-bunching—even just a little?

        1. Dave: The Justice of The State Supreme Court is the big kahuna here. That one race alone is the reason Republicans want to endanger everyone’s health. They calculate that pandemic conditions will keep just enough voters away from polls for Conservative Justice Daniel Kelly to win.

          1. *Justices, judges, and referendum notwithstanding*, what other ballot has implications for millions of state-wide voters?

            I do thank you for the compromise: Rather than saying that “Republicans WANT TO KILL PEOPLE!!!11!!11!11 ZoMG” you modified it to simply wanting to endanger their health.

            Maybe we should both call it a victory and move on?

            1. *Justices, judges, and referendum notwithstanding*, what other ballot has implications for millions of state-wide voters?
              ___________________________________________________
              There were also numerous county, municipal and school board candidates and referenda on the ballot

  9. Wisconsin voters were the losers in “Republican National Committee v. Democratic National Committee” conservative opinion by Justice Kavanuagh. As Justice Ginsburg pointed out in her dissent voters will be faced with a Hobson’s choice: “Either they will have to brave the polls, endangering their own and other’s safety. Or they will lose their right to vote, through no fault of their own”. By holding to the April 7 mail in vote deadline voters will not get their ballots in time. But this fits a pattern. For the last 10 tears or more Republican controlled states have used every device to suppress the vote–from gerrymandering, voter ID laws- any means to hold onto power. Trump has opposed a Democratic proposal for mail in voting in the event the coronavirus continues into November. He said just last week: “They [the Democrats] had things- levels of voting that, if you ever agreed to it, you’d never have a Republican elected in this country”. And once again the conservative majority on the Supreme Court has sided with Trump in exalting form over substance by disenfranchising Wisconsin voters. This isn’t about the “blind rage of politics” Jonathan, but about ensuring every voter gets a chance to vote in our democracy that is increasingly under threat.

  10. Wisconsin Incable Of Conducting Widespread Virus Testing

    As of Monday, 29,014 people in Wisconsin have been tested for COVID-19, with 2,440 of them testing positive. But that is an incomplete picture because testing has been largely restricted to a subset of the population, such as hospitalized patients, people in nursing homes and assisted living centers, health care workers and first responders.

    “We have no idea about how many people with minor illnesses are walking around in communities,” said Safdar, who is a professor of infectious disease at the University of Wisconsin School of Medicine and Public Health.

    Widespread testing also will be needed to estimate how many people have recovered from the disease and have immunity.

    The Department of Health Services estimates the labs that belong to the Wisconsin Clinical Laboratory Network, which includes health system and hospital labs, has been performing 1,500 to 2,000 tests a day.  This is in a state of 5.8 million people.

    Edited From: “Labs Throughout Wisconsin Hindered By Limited Supplies Needed To Process Covid-19”

    Today’s Milwaukee Journal-Sentinel 

    1. Iceland has tested the higher percent of population than anyone (5% of the country) and only 1% of those tested were positive.

      The demographic “subset” of Wisconsin’s population that you cite will surely have a higher rate of infection than a larger, out of the crosshairs sample.

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