The scant, 10-page opinion issued Monday night highlighted the court’s ideological and partisan divide. The justices’ inability to speak with one voice on matters as serious as the coronavirus pandemic and voting rights raised concerns about the legal battles bound to proliferate before the fall elections.
“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,” Richard Hasen, an election law expert at the University of California at Irvine, wrote on his Election Law Blog.
The reaction was predictable. “The U.S. Supreme Court has struck down illegal, desperate attempts from Democrats to extend voting past Election Day,” a Republican State Leadership Committee press release said. “Another great win for democracy — and fair elections.”
Anger from the left was palpable.
“With this outrageous ruling the Supreme Court’s far-right majority put not just its thumb, but its entire fist, on the scale in favor of making it harder for people to vote,” People for the American Way Vice President Marge Baker said in a statement. “ . . . If there were any lingering doubt that Republican aims of voter suppression were being aided and abetted by the courts and via far-right appointments to the bench, it was removed tonight.”
The Supreme Court’s decision to stay lower courts’ decisions that extended absentee balloting for a week comes in an election in which the most notable race is a conservative Republican’s battle to keep his seat on the elected state supreme court.
President Trump tweeted Tuesday morning: “Vote today, Tuesday, for highly respected Republican, Justice Daniel Kelly. Tough on Crime, loves your Military, Vets, Farmers, & will save your 2nd Amendment.”
The U.S. Supreme Court’s five conservatives, all nominated by Republican presidents, sided with Republicans while the four liberals, nominated by Democrats, sided with Democrats.
The majority’s insistence that the normal rules and precedents about elections be respected comes as the court itself has postponed two months of oral arguments because of the fear that the majestic courtroom is no place for hundreds of people to gather during the coronavirus outbreak.
The justices have even distanced from one another, holding their private meeting to discuss court matters by teleconference.
Wisconsin voters who have not already cast absentee ballots, on the other hand, “will have to brave the polls, endangering their own and others’ safety,” Justice Ruth Bader Ginsburg wrote in her dissent. “Or they will lose their right to vote, through no fault of their own.”
Despite the partisan stakes, there didn’t appear to be much effort on the part of the justices to paper over their disagreements. “While I do not doubt the good faith of my colleagues, the Court’s order, I fear, will result in massive disenfranchisement,” wrote Ginsburg, who was joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
The majority opinion — an unsigned, four-page document on behalf of Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh — declared the dissent “quite wrong on several points” and described the issue before the court as a “narrow, technical question about the absentee ballot process.”
It is true the court was put in a tough position caused by Wisconsin’s political dysfunction. State Gov. Tony Evers (D) first insisted the primary should go on, unlike governors in other states worried about the pandemic. When he changed his mind, the state’s Republican legislative leaders refused to even consider the possibility — one of the leaders had earlier discussed which election date would help Kelly’s chances.
Late last week, U.S. District Judge William Conley granted Democrats what the Supreme Court’s majority called “extraordinary” relief — that election officials should count absentee ballots through April 13, even if they were cast after Tuesday. A panel of the U.S. Court of Appeals for the 7th Circuit affirmed.
The Supreme Court’s majority disagreed. “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,” the conservatives wrote.
Clerks may count absentee ballots received by April 13, the opinion said, but they must be postmarked by April 7.
Ginsburg questioned such a rule. She said testimony showed some who have requested absentee ballots will not receive them by Tuesday, and thus have no way of meeting the court’s deadline.
“If a voter already in line by the poll’s closing time can still vote, why should Wisconsin’s absentee voters, already in line to receive ballots, be denied the franchise?” she wrote.
The matter before the Supreme Court was only about lower federal courts’ decisions to extend absentee voting, not the Wisconsin Supreme Court’s last-minute ruling — it too came on partisan lines — that Evers lacked the authority to postpone voting.
The U.S. Supreme Court’s ruling was issued perhaps reluctantly only after that, around 7 p.m. on election eve.
It probably won’t be the last time the justices, who received the case Saturday, are called into last-minute service.
One point, the majority opinion said, “cannot be stressed enough.”
The decision “should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate.”