Was it really a coincidence that Republican-backed justices in Wisconsin and Republican-nominated justices on the U.S. Supreme Court all sided against giving voters more time to cast ballots? Was it really a coincidence that their grudging interpretations of the law aligned with Republicans’ political interests?
The Democratic presidential primary was in some ways the least consequential aspect of Tuesday’s voting. Also on the ballot was an election for a state Supreme Court seat, with incumbent Daniel Kelly, appointed by former Republican governor Scott Walker, facing a liberal challenger in his retention bid. And so, inevitably, there was President Trump, tweeting at midday Tuesday: “Wisconsin, get out and vote NOW for Justice Daniel Kelly. Protect your 2nd Amendment!”
It is impossible to reconcile the logic of holding an in-person election with a stay-at-home order in place, and yet that is what happened Tuesday, as long lines of would-be voters risked their health to vote. This is a choice that no one should be forced to make. But conservative justices, on the Wisconsin Supreme Court and the U.S. Supreme Court, left many would-be Wisconsin voters no option between danger and disenfranchisement.
First, the Wisconsin Supreme Court blocked Democratic Gov. Tony Evers’s last-minute order suspending in-person voting and moving the deadline for mail-in ballots to June 9. “I cannot in good conscience stand by and do nothing,” said Evers, who had been unable to persuade the Republican-controlled state legislature to let the state send absentee ballots to all voters.
The Wisconsin court’s four-justice conservative majority — Kelly, on the ballot, didn’t take part — ruled that Evers’s order exceeded his authority. “The question presented to this court is whether the Governor has the authority to suspend or rewrite state election laws,” the majority concluded. “Although we recognize the extreme seriousness of the pandemic that this state is currently facing, we conclude that he does not.”
The two liberal justices dissented — and did not hold back in imputing motive. “The majority gives Wisconsinites an untenable choice: endanger your safety and potentially your life by voting or give up your right to vote by heeding the recent and urgent warnings about the fast growing pandemic,” wrote Justice Ann Walsh Bradley. “These orders are but another example of this court’s unmitigated support of efforts to disenfranchise voters.”
That was bad enough. Then came the U.S. Supreme Court, making the choice facing Wisconsin voters even more cruel. In response to the pandemic and the accompanying flood of requests for absentee voting, a lower court had extended the deadline for receiving mail-in ballots from Tuesday to next Monday, April 13. The question before the justices was whether those ballots had to be postmarked by Election Day, or whether they could be postmarked afterward as long as they were received by the 13th.
In a sane world — and, sorry to say, in a nonpartisan world — this would be a no-brainer. The deadline was extended because so many people had requested mail-in ballots as a result of the pandemic. Elections officials advised that tens of thousands of those ballots would not arrive at voters’ homes until after Election Day, meaning they could not be postmarked in time.
But considerations of logic and fairness did not stand in the way of the five conservative justices’ conclusion that the April 7 postmark deadline could not be relaxed. “This court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election,” they observed in an unsigned ruling — as if this were some ordinary time.
“It bears mention,” the majority said, “that absentee voting has been underway for many weeks, and 1.2 million Wisconsin voters have requested and have been sent their absentee ballots” — as if that mattered to the voters who have not yet received theirs, as if they were at fault for not asking sooner. Ignoring the facts in the record, the majority said it did not see “probative evidence” that “late-requesting voters” in this election were any worse off than those in previous years.
Justice Ruth Bader Ginsburg, in a dissent joined by the three liberal justices, called out the majority’s approach for what it was. “The court’s suggestion that the current situation is not ‘substantially different’ from 'an ordinary election’ boggles the mind,” she wrote. In fact, she noted, any theoretical problems posed by extending the postmark deadline “pale in comparison to the risk that tens of thousands of voters will be disenfranchised. Ensuring an opportunity for the people of Wisconsin to exercise their votes should be our paramount concern.”
Should be, but wasn’t.