“How the Supreme Court Curtailed The Right To Vote For Thousands” is the New York Times headline about the Wisconsin elections fiasco this month. The headline is misleading and inflammatory, insinuating that the Court majority aided and abetted a Republican effort to suppress votes. In fact, the majority, headed by Justice Kavanaugh, followed the law. I don’t know if Jim Rutenberg and Nick Corasanti, who wrote the story, actually read the opinion they are criticizing. I wouldn’t bet my life on it.
Luckily, Professor Turley was irritated about this, and explained why the narrative was garbage ten days ago. In a blog post titled, “No, The Supreme Court Did Not Just Help Rig The Wisconsin Election,” Turley wrote in part (but read it all):
…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.
Translation: the minority, made up of Democratic appointees, were taking a partisan position based on politics, exactly what the Times reporters accused the conservative majority of doing.
The issue in Republican National Committee v. Democratic National Committee was not whether an election would be held this week in Wisconsin. … 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 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.
Got that? The Governor fist said that he didn’t have the power, then reversed himself when the legislature, which did have the power, refused to do what he and his party wanted. But as Turley points out, he was right the first time, since “his authority was transparently weak…He does not have that express unilateral authority under existing law.”
Turley goes on to say that he agrees with the governor that holding the election posed “am unnecessary risk and forces citizens to choose between minimizing their exposure and declining to participate in the election. …However, this is ultimately a question for the state legislature.” If the law says it’s the legislature and only the legislature that can postpone an election, the fact that one party really really really wants it postponed doesn’t and can’t change the law, even if that party happens to be right.
OK, pay attention now, because this is a mess:
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.
In this respect, the case was a bit like Bush v. Gore, because that case also arose after a state court repeatedly decided to engage in judicial activism while overturning a strict interpretation of existing law. The issue here was “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.”
Not the substance of the request, or whether a postponement was wise, or whether voters would be disenfranchised, but whether a lower courtswas exceeding its power even if its intentions were pure.
Kavanaugh wrote for the majority:
“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.”
What’s the Purcell Principle? In Purcell v. Gonzalez (2006). the Court reversed a lower court decision that altered an election rule close to the election. The Purcell Court emphasized:
. Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.
The Supreme Court has therefore followed the principle and reversed lower court injunctions that have altered election rules too close to the time of a scheduled election. The Wisconsin decision was based on precedent, not partisanship.
One cannot say the same of Justice Ginsberg’s tortured dissent. She wrote,
“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.”
But that’s a policy matter, and the Court isn’t supposed to make policy, it’s supposed to determine what’s legal. This, however, is the mindset of progressive judges (like Ginsberg): figure out the result you like, and then squeeze it into the law somehow. In this case, Ginsberg, the old fox, tried to squeeze it into…the Purcell Principle! She wrote,
This Court’s intervention is thus ill advised, especially so at this late hour. See Purcell v. Gonzalez, 549 U. S. 1, 4–5 (2006) (per curiam). Election officials have spent the past few days establishing procedures and informing voters in accordance with the District Court’s deadline. For this Court to upend the process—a day before the April 7 post-mark deadline—is sure to confound election officials and voters….Second, the Court’s order cites Purcell, apparently skeptical of the District Court’s intervention shortly before an election. Nevermind that the District Court was reacting to a grave, rapidly developing public health crisis. 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.
See what she did there? She turned the Purcell Principle inside out and upside down! Professor Derek T. Muller of Pepperdine University School of Law calls the foul:
That can’t be what Purcell dictates. Purcell’s entire point is that lower courts can’t change the rules of elections close in time to the election—not that once they do so, the Supreme Court (which always hears the case even closer to the election) can’t restore the original rule.
Gee, do you think Justice Ginsberg really misunderstood Purcell that badly? I don’t. She was, like the good little progressive she is, desperately trying to “do the right thing” even if it didn’t follow law or precedent. But, you see, for the Supreme Court, following law and precedent is the right thing.
Turley has another complaint:
The dissent ignores that this was relief not requested in the motion by the Democrats and that the date for receipt of ballots [had] already been extended. Moreover some 1.2 million Wisconsin voters [had] requested and [had] 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.
And now, The Birth of a Narrative! 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?…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.
Want to guess how many of your friends who angrily posted on social media that those racist Republican governors led by that rapist Brett Kavanaugh sided with Wisconsin Republicans to restrict access to the polls actually read the opinions?
Post script: in what was regarded as the most important race, conservative Wisconsin Supreme court justice Dan Kelly was a surprise loser in his race for a ten-year term to liberal challenger Jill Karofsky. He lost by a shocking eleven percentage points. Meanwhile turn-out was high. Ginsberg was, in addition to being disingenuous, wrong.