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