Message
to SCOTUS from Wisconsin: Maximize voting and public health
When the United States Supreme
Court, split along the familiar lines, reversing the courts below, ordered “Per
Curiam” that Wisconsin voters who chose mail ballots must have them post-marked
by midnight of election day, Tuesday, April 7, the usual alarms rang. Defenders saw a ruling to maintain regular
order and ballot integrity; critics saw a partisan effort to reduce voting and
aid a Republican seeking to retain a state Supreme Court seat. Of course, neither
an effort to save or gain a court seat should motivate the decision on how to
conduct an election.
The Wisconsin legislature refused
to move its election to June as Governor Tony Evers had asked. Wisconsin had directed people to stay home to
avoid spreading the corona virus. A
million voters requested absentee ballots.
On the Thursday before the scheduled election day the overwhelmed
election board had yet to mail over 150,000 absentee ballots. Voters and the Democratic National Committee
persuaded the United States District Court to extend the last day for receipt
of ballots by a week. And ordered
results not be released until then.
The Supreme Court majority of
five made the postmarked date – midnight on the 7th - the deadline
for ballots that would be counted. This was a creative step because there was
no law or order that made the postmark a determinative marker, as Justice Ruth
Ginsburg pointed out in dissent. But the
solution had a reassuring feel for those who feared election manipulation. Postmarks back in the day carried a lot of
weight – as millions got their tax returns in the mail to meet that April 15
deadline. So that bit of creativity
surely struck the high court judges as modest and regularizing. The important thing, they wrote, was that the
District Court order “would fundamentally alter the nature of the election by
allowing voting for six additional days after the election.”
But the phrase “the election” is reductive. Mail and absentee ballots have made election
day a deadline more than a day. “The
election” is not a day but a process.
The integrity of the process is of course important in creating
confidence in the result. So the Court
understandably turned to its oft cited 2006 maxim in Purcell v. Gonzalez “lower federal courts should ordinarily not alter the
election rules on the eve of an election.”
We agree. But “ordinarily” is doing more work than it
can bear. These are certainly not
ordinary times – they are emergent times – which require adjustment to an
extraordinary circumstance. In Wisconsin as elsewhere people had been commanded
not to leave their homes except for essential functions. Another of the not ordinary circumstances is
that thousands had not received requested mail ballots by the day before “the
election” when the Supreme Court acted to declare the next day’s postmark the
end date. Further the semi-quarantine
dictated by the corona virus compelled the City of Milwaukee - where one sixth
of voters in Wisconsin live – to reduce the number of polling places from 180
to five because poll watchers were confined to home.
Tuesday - the day after the
Supreme Court’s order - saw long lines of masked voters snaking on sidewalks on
a rainy day. The image of brave voters
risking lethal disease to cast a ballot suggested a triumph of democracy. But bravery at the ballot box is not what we
should be encouraging. The importance of easy access to the ballot is what the
majority slighted in its concern for ballot security and integrity.
Many saw in the Legislature’s
refusal, and the Supreme Court’s order, the intention to suppress the big city
Democratic vote. We are not ready to
attribute such a motive to the Justices in the majority. Following “ordinary” procedures, is, as we
noted, usually the proper course to assure public confidence in the outcome of
an election. We have our own experience
of that. Nor are we ready to say that higher turnout favors one party over
another.
When the results were counted a
Democratic surge was the unexpected result.
Was the rainy day turnout a reaction against the Supreme Court
ruling? Do mail ballots produce a
neutral partisan effect as a recent study by the Stanford Democracy &
Polarization Lab showed? Whichever may
be the case or neither the Supreme Court, judges, governors, and legislators
nationwide should affirm as we approach the nationwide elections: voter
participation and the public health should both be maximized. Court rulings, laws, and executive decrees
guided by those principles will best serve democracy and law.
- George
Conk
April 17, 2020
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