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. So, the leftists were praising a district judge “legislating from the bench,” but shed great crocodile tears when they felt SCOTUS did the same? Yet another example of naked hypocrisy.

  2. Wisconsin Voters Demand Absentee Ballots But Supreme Court Dismisses Need

    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.   

    Ballots hadn’t even been mailed yet to more than 11,000 voters by clerks facing a task never seen before as they managed more absentee voting than ever before while also losing workers over fears of coronavirus infection.

    Wisconsin Elections Commission administrator Meagan Wolfe said at an emergency meeting late Monday that figure could be fewer because the number of ballots that haven’t been mailed rely on reporting by local clerks.   

    A number of voters also have reached out to the Milwaukee Journal Sentinel in recent days saying they requested absentee ballots up to three weeks ago and still have not received them. Some say clerks have told them there’s no record of the request. 

    Evers issued an executive order Monday afternoon — 18 hours before polls were set to open — to bar in-person voting as a massive shortage of poll workers prompted some election officials to reduce polling locations, including in Milwaukee which will have just five instead of 180. 

    But the state’s highest court reinstated the election within hours, capping off nearly six hours of confusion as election officials told clerks to continue preparing for an election because they did not know whether the polls would open Tuesday.

    A little over an hour later, the U.S. Supreme Court delivered a second blow to the Democratic governor by tightening limits on which absentee ballots can be counted. Under that 5-4 order, voters will have to mail back their absentee ballots by Tuesday, go to the polls that day or give up their opportunity to vote.

    Edited From: “WisconsinJustices Block Tony Evers’ Order To Shut Down Election, U.S. Supreme Court Restricts Absentee Voting”

    Today’s Milwaukee Journal-Sentinel 
    ……………………………………………………

    KEY PASSAGE FROM STORY:

    “A massive shortage of poll workers prompted some election officials to reduce polling locations, including in Milwaukee which will have just five instead of 180”. 

    See that??  Milwaukee, Wisconsin’s largest city by far, with more than half a million people, will have just ‘5’ Polling stations; down from 180.

  3. Here’s the deal: Republicans know that most of America does not support them, and that voter suppression tactics help them get into office. Those who wanted to force Wisconsonites to come out and be exposed to a deadly disease were all REPUBLICANS: the Republican-controlled state Supreme Court, and the Republican majority in the SCOTUS. Polling places in Milwaukee went from over 100 to just 5, all of which helps Republicans, or so they believe. The SCOTUS, not unsurprisingly, split along ideological lines. And, to ice the cake, Turley plasters a picture of that obnoxious and invalid Brett Kavanaugh on this wrong decision. Perhaps people who never thought much about it before will now see how big a deal it is when McConnell cheated America out of Merrick Garland for the SCOTUS.

    Turley claims: “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.” Most people who might want absentee ballots can’t get them at this point, so, as Justice Ginsberg pointed out, voters are being forced to either violate the stay at home guidelines or give up the right to vote. Younger voters are more pro-Sanders, and they are greater risk-takers, so more of them would come out. Republicans want Sanders to be the candidate because they believe that he has less voter appeal. All part of the plan to cheat Americans out of their choice of candidate, just like in 2016.

    Meanwhile, the IG for HHS wrote a report stating that, contrary to Trump’s lies, most hospitals report shortages of PPE, testing supplies and tests. Now, Trump is blasting that as “another fake dossier”. And, Trump’s “acting” Secretary of Navy was forced to apologize after calling the brave captain of the U.S.N.S. Theodore Roosevelt “stupid”, a comment that brought out the following response from the crew: “What the F?” Plus, it was just revealed that Trump is heavily-invested in Sanofi Pharmaceuticals, a company that makes….wait for it……Hydrochloroquine! Are you surprised?

    What happened to Jared?

    1. Natacha, you’re sadly correct. It’s shocking that the conservative majority on the U.S. Supreme Court would just automatically back up Wisconsin Republicans so they can re-elect a conservative to their State Supreme Cort.

    2. whenever you guys see an angle to discredit, you do

      in another situation you might be lauding the judges for upholding the institution of elections as such. if you thought your guy was going to win by them so doing!

      it all comes down to specific facts. will this or that favor your side? then you craft the message to fit what’s advantageous

      you project this lack of principle on to others, so you always see an ulterior motive

      for my part, they as a matter of principle I am a follower of Plato on the subject of “democracy”

  4. Republican-Controlled Wisconsin Legislature Met For Only  ‘Seconds’ To Consider Public Health

    In late March, Evers, Fitzgerald and Vos agreed with plans to move forward with the election, which features a Wisconsin Supreme Court race, presidential primary and hundreds of local races.

    However, on Friday, Evers called on the GOP-led Legislature to convene to take up emergency legislation to eliminate in-person voting and extend the deadlines for requesting and returning absentee ballots. The proposal also called for mailing an absentee ballot to every remaining voter in the state who has not requested one. Republicans dismissed the proposal, with both houses meeting for just seconds on the matter Saturday and Monday.

    More than 1.2 million absentee ballots had been requested in the state by Monday, shattering previous records for any election. So far, more than 720,000 ballots have been returned.

    Edited From: “Statewide Election Back On After Wisconsin, U.S. Supreme Court Take Action”

    Edited From: Today’s Wisconsin State Journal
    ………………………………………………..

    KEY PASSAGE FROM STORY:

    “Republicans dismissed the proposal, with both houses meeting for just seconds on the matter Saturday and Monday”.

    See that??  The Republican controlled Wisconsin State Legislature met for only ‘seconds’ to dismiss Governor Evers proposal to delay the election.  For only ‘seconds’ did they consider the health of voters and poll workers.

    1. How does the Supreme Court heard these case so fasT. Most people didn’t receive their mail in ballots yet. Also 180 sites to open for the election down to 5 sites.

  5. This is an extraordinary time and voting in person is tough. The majority of poll places have closed. That disenfranchises many voters, and a reasonable remedy is to allow for extended mail voting. So it is ok to close many polling places but allowing some flexibility for mail voting is bad? This ruling is a long line of ruling from SCOTUS where the voters lose.

    1. I am a Platonist where ‘Democracy” is the question. So whatever restricts the franchise may just lead to better government as far as I’m concerned. Let’s bring back literacy tests for example. I find it remarkably unwise for example, that people who are at 80 IQ or lower are allowed to vote, or say, people with schiz paranoia who can’t discern reality.

      Here’s a chart on the subject

      http://www.bazelon.org/wp-content/uploads/2017/11/2016_State-Laws-Affecting-Voting-Rights-of-PWD.pdf

      1. Mr Kurtz: Literacy tests had nothing to do with keeping low IQ people from voting, the goal was to keep minorities from voting. They were designed to be very hard and the pass score was determined by the person grading it, so they could pass or fail anyone at will. And they did.

        1. MollyG – I do not think anyone should be allowed to vote who cannot get at least 75% on the new citizen test. Arizona requires each student to pass a Civics test to pass high school.

        2. I recommend a proper literacy test which is a valid measure of basic civic capacity, not an arbitrary DQ of political opponents.

          Now if that hurts the Democrats, as it might in some places, probably not most, but if it hurts them in some places, that doesn’t really worry me. it might hurt Republicans in some places, who knows

    2. The stolen SC majority were picked for a reason Molly. They’re doing what they were sent to do – reinforce the power of the minority of Americans they represent.

  6. There’s law, and there’s politics. Justice Kavanaugh’s decision is correct. That’s the law.

    Now there’s the politics. The Republican Party of Wisconsin demonstrated they are willing to risk the health and safety of our citizens on their belief this pandemic gives them an electoral advantage in Wisconsin’s Supreme Court race.

    Due to the dangers of COVID 19, we assume all people with fevers, flu symptoms, and congestion today are COVID 19. It’s the proper way to deal with the dangers of this virus. We isolate, quarantine, and social distance. The Republican Party of Wisconsin could have agreed to postpone the election as Governor Evers requested; for the health and safety of Wisconsin’s citizens. The Republican Party refused. More important than the health and safety of our citizens was the Republican Party’s desire Dan Kelly win his race for our Supreme Court. (Kelly was appointed by Scott Walker, is ideologically rigid, has not won an election, and has been writing opinions consistent with his strident ideological beliefs) The Republican Party believes the pandemic will suppress voter turnout and enhance Kelly’s prospects.

    Politically, the Republican Party of Wisconsin now owns any and all increase in COVID 19 infection rates five days from now, the average incubation period for the virus. By breaking social distancing to vote, the voter, their family, and everyone they come in contact with is at risk. The Republican Party of Wisconsin is willing to take that risk with voters’ lives. We must assume any rise in future infection rates are due to the Wisconsin Republican Party.

    I’ve voted Republican for 40 years. The Wisconsin Republican Party has alienated and abandoned me. They are not MAGA. They are ideological. They do not care about the people, but only for imposing their ideological beliefs on the people. It’s the opposite of what “progressive” ideologues do. Conservatism, at one time, and as practiced by Donald Trump, is for the people; all the people. The Wisconsin Republican Party is not and has proven so by their willingness to risk voters lives. Politically, they should be done.

    And, for your information, people with symptoms are being tested and asked to isolate every day. My wife was tested and asked by her doctor to isolate late yesterday afternoon. She can’t vote in this election; period.

    1. Now there’s the politics. The Republican Party of Wisconsin demonstrated they are willing to risk the health and safety of our citizens on their belief this pandemic gives them an electoral advantage in Wisconsin’s Supreme Court race.

      Or was it that Gov. Evans could have requested a postponement in a timely fashion and failed to do so until the postal ballot returns suggested a Republican advantage?

  7. “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”

    where have we seen that move before,recently try Pelosi playing the part of the non lawyer who never showed up or provided any evidence.

    1. Ha, ha, ha! Trump said too much voting was not good for Republicans! Yep, I kniw it was a primary but we all kniw it’s a dry run for November. The Republican Members of SCOTUS are not just Relublicans they at
      Re Trumpsters!

      1. His comment was intended broadly.

        “To counteract disruption caused by the outbreak, and to make sure states safely run elections, Democrats proposed measures such as vote-by-mail, same-day registration and early voting.

        Despite their efforts, these measures were not included in the final US$2.2 coronavirus stimulus package that, according to The Guardian, allocated US$400 million to states to help them run elections.

        “The things they had in there were crazy. They had things, levels of voting that if you’d ever agreed to it, you’d never have a Republican elected in this country again,” Trump said. ….”

        https://themilsource.com/2020/03/31/trump-says-republicans-wont-win-an-election-again-if-its-easier-for-americans-to-vote-what-is-voter-suppression/

          1. Of course the mentally incompetent can vote. How else besides corruption to explain the Democrat governors and mayors?

  8. I did notice the National Guard, unlike the Black Panthers, were dressed in all-white protective gear.

  9. I loved this blog. It was yet another great story from wisconsin Dee.
    Whistler and Emilia are back with more fast cars, more guns, more steamy romance and even some arguments! If you enjoyed the 1st book you’ll absolutely love this one!

  10. What’s more dangerous — walking into a large, sanitized grocery store or walking into a small sanitized voting booth? This is not rocket science. One person at a time. Six feet between people waiting to vote. Voting machines / screens sprayed with a 20% bleach water solution and wiped down after each use. This will add approximately two minutes to the actual voting process.

  11. THE DEM’s Tried to stack the deck, they tried to get around the rule of law and voting/elections. The DEM’s, especially Pelosi talk about free and fair elections but what they mean how can they stack the deck with questionable votes. Sorry Dem’s and Pelosi, you lose.

  12. Where have we seen a Democrat Chief Executive say he didn’t have the power to make law and then try to make law by Executive Order once the Legislature didn’t give him the law he wanted?

    I know this has happened before. I just can’t remember who or when.

    Bueller? Bueller? Anyone?

  13. JT is wrong. It was a power play by the GOP which has an illegitimate SC majority stolen from the majority of American voters enforcing a power play by the Wisconsin legislature. Both houses voted down the change to the election without debate and by voice vote. The procedure took less than a minute in each house.

    Restricting voter participation is now GOP orthodoxy, now stated openly by the President and in the recent past by party powers. Stealing a SC seat from the party that has won 6 pf the last 7 popular presidential votes was crime now paying off. The GOP will have no one but itself to blame when tables are turned and their 5 seats become a minority in an expanded court.

    Minorities are to be protected under our constitution, they are not to be enthroned.

    1. JT is wrong. It was a power play by the GOP which has an illegitimate SC majority stolen from the majority of American voters.

      I gather they told you in your Correct-the-Record orientation to simply flog the same nonsense over and over. Most people would be too embarrassed to do that.

  14. Professor Turley writes that “Citizens need only put their ballots in the mail before or on election.”
    But he ignores the very problem that Ginsburg identified–that many people simply won’t get their ballots in time:
    “A voter cannot deliver for postmarking a ballot she has not received. Yet tens of thousands of voters who timely requested ballots are unlikely to receive them by April 7, the Court’s postmark deadline. The surge in absentee- ballot requests has overwhelmed election officials, who face a huge backlog in sending ballots. As of Sunday morning, 12,000 ballots reportedly had not yet been mailed out. It takes days for a mailed ballot to reach its recipient—the postal service recommends budgeting a week—even without accounting for pandemic- induced mail delays. It is therefore likely that ballots mailed in recent days will not reach voters by tomorrow; for ballots not yet mailed, late arrival is all but certain.”

    1. Having done this sort of work in the past, I’m wagering it’s just institutional lassitude.

    2. “But he ignores the very problem that Ginsburg identified–that many people simply won’t get their ballots in time:”

      But apparently that wasn’t the problem that the suit presented which was the problem with the court’s decision. It ruled on something that wasn’t even put before them – if I’m reading it correctly.

      I am hoping that the people handling the voting centers can come up with some creative solutions to make voting safer for everyone. For one thing, I think holding the national elections during the onset of flu season may not be the best idea. Maybe in the future it would make more sense to move it to the middle of summer?

      1. For one thing, I think holding the national elections during the onset of flu season may not be the best idea. Maybe in the future it would make more sense to move it to the middle of summer?

        How about having the polls open from 7-11 pm Friday and 7 am to 6 pm Saturday? We have them on Tuesday because that was the common market day…in the 1850s.

        1. “How about having the polls open from 7-11 pm Friday and 7 am to 6 pm Saturday? We have them on Tuesday because that was the common market day…in the 1850s.”

          That makes sense. Even all day Friday, all day Saturday, though maybe a larger window makes it easier for fraud/hacking, I don’t know.

          On the one hand, I like the idea of making it more convenient for more people to vote – on the other hand, I see a benefit in voting being difficult enough to dissuade the least engaged, occasionally least informed members of the population. But maybe the electoral college already provides a check and balance on them. After all, it provides some measure of safeguarding against the most dangerous segment of the population which is comprised of hyperactive voters.

  15. Barty OK steps up hard for mail voting in the process. Probably not the worst thing for when Trump tries to postpone the presidential election in the fall.

    1. Trump is going to permanently end elections and set up a monarchy. Our only recourse is suicide!

      You first.

      1. Ti317 – okay, I will play along. What do you think The Donald will take as a title with his monarch?

  16. I did hear the National Guard will be allowing one voter into the polling places at a time.

  17. Elections administration in this country is a mess and it’s in worse shape than it was a generation ago. The legislature was feckless, of course. In such matters, legislatures are always feckless. (And the Democratic Party nowadays invariably seeks ways to enhance their opportunities for stuffing the ballot boxes).

    1. There is no evidence for TIA’s accusation. Even the task force Trump put together to “investigate” this claim disbanded with NOTHING.

      1. There is no evidence for TIA’s accusation. E

        The talking points they send you every morning are silly.

      2. The task force Trump put together that I do believe you speak of was “disbanded” because…

        The State DemoKKKrats would not cooperate with the task force in turning over the voter rolls

        And the task force had no supeona power

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