Friday, April 17, 2020

Message to SCOTUS: Maximize voting and public health - Wisconsin teaches us

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.

Consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines, Ralph Waldo Emerson famously observed.  That’s a challenge because we as lawyers believe that treating like cases alike is of prime importance.  Predictability of adjudication guides conduct.  But the United States Supreme Court on Monday April 6 - election eve - confronted a District Court order that was certainly out of the ordinary and challenged the norm. 

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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