No Vote For You!

U.S. Supreme Court won’t allow primary voters in Wisconsin more time to turn in absentee ballots because of Coronavirus pandemic

It’s bewildering enough, it seems to us, that Wisconsin is going ahead with its primary today, after the Wisconsin Supreme Court rejected a last-minute move by the state’s governor to delay it til June. (We talked about this last week in our piece entitled: “Is Biden Winning? Is Trump? What?! The Country Is On Fire!”)

But a second ruling, by the U.S. Supreme Court, responding to an appeal by both Republican legislators in Wisconsin, and the Republican National Committee, may resonate even more in terms of far-reaching national implications.

The Supreme Court overturned a federal district court judge, who just a few days ago granted voters in Wisconsin an extra week to get their absentee ballots completed and in. Because–and this is the important part–thousand and thousands of voters there will not have even received their absentee ballots by the time they’re required to send them back. (And if you haven’t got it, you can’t return it.) So now it’s going to be impossible for all those people to vote unless they take their lives into their own hands and show up in person at the polls. That’s because the nationwide COVID-19 outbreak led to such an upsurge in requests for absentee ballots that elections officials in the state weren’t able to keep up with the huge backlog created. Understandably so. So why not cut them some slack?

The response by the Supreme Court was, in effect: too bad, should’ve thought of it earlier.

No, really.

In this type of ruling, Justices do not have to explain which way they voted or why. But we know exactly who did what because all 4 of the Court’s more liberal justices joined Justice Ruth Bader Ginsburg’s dissent, which we’ll get to in a sec. So that means that the 5 conservative justices who often vote together did so here too. The application to block the lower court ruling was made to Justice Kavanaugh, so that’s why his name’s on it, but that doesn’t really mean much since the responsibility to hear time-sensitive challenges of lower court rulings rotates among the Justices. So in its response, the conservative justices end up writing as one: “Per Curiam“, meaning literally “by the court”. And “the court” says:

Wisconsin has decided to proceed with the elections scheduled for Tuesday, April 7. The wisdom of that decision is not the question before the Court. The question before the Court is a narrow, technical question about the absentee ballot process.”

The conservative justices speaking as one go on:

[F]ive days before the scheduled election, the District Court unilaterally ordered that absentee ballots mailed and postmarked after election day, April 7, still be counted so long as they are received by April 13. Extending the date by which ballots may be cast by voters—not just received by the municipal clerks but cast by voters—for an additional six days after the scheduled election day fundamentally alters the nature of the election.”

And finally:

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.”

In other words, District Court Judge William Conley did wrong by coming up with a creative solution to an emergency situation.

And not just an emergency situation. A crazy, horrible emergency situation for the ages.

Judge Conley refused to do what the plaintiffs (the Democratic party) were asking for, which was to delay the election, over the objection of the defendants (the Republican party), because he said it is not appropriate “for a federal district court to act as the state’s chief health official”. So he came up with a compromise designed not to disenfranchise voters despite all the infighting, and potentially treacherous situation at the polls. Too loosey goosey, says the Supreme Court.

And yes, a lot of this has to do with a contentious relationship between the state’s Democratic governor and Republican controlled legislature. But Wisconsin’s far from the only state with that set up. Nor the only swing state. Don’t have to look any further away than the opposite side of Lake Michigan for another one.

As we mentioned, Justice Ruth Bader Ginsburg did attach a dissent, saying:

The majority of this Court declares that this case presents a “narrow, technical question.” That is wrong. The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. Under the District Court’s order, they would be able to do so. Even if they receive their absentee ballot in the days immediately following election day, they could return it. With the majority’s stay in place, that will not be possi-ble. 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. That is a matter of utmost importance—to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation.”

Says Cal Irvine Law Professor Rick Hasen:

It is a very bad sign for November that the Court could not come together and find some form of compromise here in the midst of a global pandemic unlike anything we have seen in our lifetimes.”

And Trump has made it very clear in recent days he opposes any expansion to mail-in or absentee voting, even though no one really knows what this country is going to look like in November. And also between now and then. The President saying last week at one of his daily media appearances:

It shouldn’t be mail-in voting. It should be: You go to a booth and you proudly display yourself.”

And also that if Democrats had successfully passed the election reform measures they tried to put into the first Coronavirus stimulus bill, which were mostly related to nationwide no-excuse mail-in voting and early voting:

You’d never have a Republican elected in this country again.”