Wisconsin’s Election Mess

The state is voting during the high point of a global pandemic because Republicans forced it.

Every other state that was scheduled to vote today postponed their election. Wisconsin didn’t until the 11th hour and the state supreme court reversed that. Meanwhile, the US Supreme Court has weighed in.

POLITICO (“Wisconsin Supreme Court overturns governor, orders Tuesday elections to proceed“):

Wisconsin’s state Supreme Court blocked Gov. Tony Evers’ late executive order postponing in-person voting in Tuesday’s elections, meaning the state’s presidential primary and hundreds of local elections will proceed hours after the governor announced he was postponing them due to coronavirus.

The ruling came after the GOP-controlled state legislature challenged Evers’ order. The state Supreme Court split 4-2 along ideological lines, with Justice Daniel Kelly, who is up for reelection in Tuesday’s balloting, abstaining.

[…]

Evers — who had previously maintained that he alone did not have the authority to postpone an election — issued his order seeking to push back the elections on Monday, saying that he was acting to reduce exposure to the virus and ease concerns among his constituents about the spread of the pandemic. Evers issued a stay-at-home order last month as part of his administration’s efforts to fight coronavirus.

The election absolutely should have been postponed. But doing so on the day before the election just added to the confusion already surrounding the contest (more on that shortly). And, rather obviously, given that the election date is set in law, the governor needed to have done so in conjunction with the legislature.

Alas, the legislature had no interest in going along:

Evers had called the state legislature back for a special session and asked them to act to postpone the election on Friday. The GOP-controlled legislature declined to do so, gaveling in and out of sessions in a matter of minutes on Saturday and earlier on Monday.

Republican legislative leaders in Wisconsin argued that the election had to go forward, though local officials across the state have pleaded for in-person voting to be shut down.

“There’s no question that an election is just as important as getting take-out food,” Vos and Fitzgerald said in a joint statement on Friday, after Evers called for the special session. “Our Republic must continue to function, and the many local government positions on the ballot must be filled so that municipalities can swiftly respond to the crisis at hand.”

People have to eat on a daily basis. Voting is a rare occasion and primary elections, in particular, are very fluid. Not to mention that it’s a hell of a lot easier to social distance when picking up take-out than when voting.

Particularly when most of the voting locations are shut down. As Vox’s Ian Millhiser wrote before the ruling came down,

With the coronavirus pandemic raging, most poll workers had refused to work Tuesday’s election, leading Evers to call up the National Guard in order to staff the polls. But this stopgap measure appears to have done little to prevent mass poll closures. In Milwaukee, for example, local election officials announced that there would be only five polling locations open — instead of the typical 180.

Meanwhile, about 50,000 Milwaukee residents are expected to attempt to vote in person, or about 10,000 per voting site. That means that each of these polling sites could potentially become a vector for the spread of Covid-19.

State officials were also overwhelmed by a crush of absentee ballots. In a typical spring election, no more than 250,000 voters request absentee ballots in Wisconsin. This time, over 1.1 million voters have sought such ballots, and that’s created a logistical nightmare of its own.

Wisconsin has struggled to mail out these ballots fast enough for voters to actually use them, and tens of thousands of voters are not expected to receive their ballots until after the April 7 election day has passed. With so many voters facing disenfranchisement through no fault of their own, federal Judge William Conley ordered the state to extend the deadline for mailed-in ballots by six days. But that ruling was overturned by the Supreme Court.

But, an hour after the Wisconsin supremes ruled that the election must go on, the US high court threw another wrench into the gears.

CNBC (“Supreme Court votes 5-4 to halt order extending absentee ballot deadline in Wisconsin“):

The Supreme Court voted 5-4 on Monday to reverse an order extending the absentee ballot deadline for voting in the Wisconsin elections scheduled for Tuesday, stepping into a back-and-forth between Democrats and Republicans in the state over when voting would take place.

[…]

In an unsigned order from which the court’s four liberal justices dissented, the court did away with the extension.

The top court’s five Republican-appointees, none of whom attached their name to the court’s order, reasoned that extending the date by which voters could mail absentee ballots “fundamentally alters the nature of the election.”

“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 order reads. “The question before the Court is a narrow, technical question about the absentee ballot process.”

[…]

The order from the Supreme Court puts a heavy emphasis on the fact that the date for the ballots to be postmarked — not just received by elections officials — had been extended. That remedy went beyond what Democrats had even sought, the court wrote. 

“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,” the Supreme Court wrote.

“This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election,” the order reads. 

Given the original sin of unnecessarily holding the election in the midst of a pandemic, the Supreme Court almost certainly got the law right. Wisconsin law, consistent with the laws of most if not all other states, requires absentee ballots be postmarked by election day. It’s not within the province of judges to arbitrarily re-write election law.

Still, while the Republican petitioners had the law on their side, the Democrats had the facts:

“A last-minute change to a voter deadline carries an increased risk that voters will not appreciate when votes actually must be cast,” Patrick Strawbridge, the attorney for the Republicans, warned in a filing with the top court. Strawbridge wrote the Supreme Court should “maintain the status quo of state election laws.”

In response, Democrats said that Republicans were ignoring the health risks posed by coronavirus, which has sickened more than 2,000 in the state, according to data from local health authorities.

“The ‘electoral status quo’ already has been upended ― not by any judicial order, but by the COVID-19 pandemic and the ‘voter confusion and electoral chaos’ it is causing,” wrote Marc Elias, an attorney for the Democrats, in a brief submitted to the court.

“Until very recently, Wisconsin voters reasonably expected they would be able either to vote safely in person on election day or through a reliable, well-functioning absentee ballot system,” Elias wrote. “Now they cannot ― and not because of any court order, but because of the pandemic.”

While most of the ire this morning is being directed at Republican justices on the Wisconsin and US Supreme Courts, it seems to me that they ruled correctly and reasonably. No, the outrage should be directed at Republican legislators in Wisconsin who are either downplaying the threat from the pandemic, engaging in gross voter suppression, or both.

Evers, a Democrat, did everything he could to mitigate this disaster, including a desperation executive order at the 11th hour he knew to be illegal. Millhiser again:

Republicans have fought tooth and nail against nearly any effort to delay the election or to make it easier for voters to cast mail-in ballots, and the state Supreme Court is dominated by Republicans. Last week, Evers called the state legislature into session and asked it to delay the election. But the Republican-controlled legislature ended that session a few seconds after it was convened.

Republicans also rejected Evers’s proposal to automatically mail ballots to every voter in the state, and they’ve fought hard in federal court — including in the US Supreme Court — to prevent ballots from being counted after the original April 7 election date.

It’s fully within the power of their office to take these policy positions and I believe both the Wisconsin and US Supreme Courts therefore ruled correctly. But the actions of Wisconsin’s elected Republicans here were shameful.

FILED UNDER: *FEATURED, Campaign 2020, COVID-19, Health, Law and the Courts, Supreme Court, US Politics, Voter Suppression
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Kari Q says:

    It’s not inexplicable. The reason is obvious. The Republican legislature believes this guarantees that the Supreme Court seat will be won by their candidate. Sure a few lives may be lost, but it’s a small price to pay to ensure voter purges will occur and gerrymandering will remain in place.

    22
  2. MarkedMan says:

    The a Republican Party actively harms our democracy.

    And you can minimize the Republican Supreme Courts role here but once again they have found a legal justification to benefit Republicans. The faith that this Republican Court is non-partisan is hopelessly naive. In every instance that would protect the right to vote and therefore benefit Democrats they either find themselves unable to weigh in on a state matter or suddenly find an exception to that principle and manufacture a legalistic reason to rule against voting rights. In every instance where it looks like a state might take an action to protect voting rights to the extent where it might harm Republican chances, they suddenly find it necessary to weigh in.

    The Republicans essentially packed the court by refusing to let Obama appoint as was his right. As soon as a Democrat becomes president and control the Senate they should appoint two extra justices, one to negate Gorsuch and the other to take back that seat. The extra justices should be explicitly and publicly pro-abortion, pro-labor and pro-environment.

    To pretend that once the Republicans have broken the court that the Democrats should respect rules and norms that no longer apply is absurd.

    23
  3. Mister Bluster says:

    @Kari Q:..Sure a few lives may be lost,..

    The traditional “votes from the cemetery” that have haunted Chicago has been reversed by Wisconsin Republicans.
    First you cast a ballot. Then you go to your grave…

    7
  4. Kit says:

    @MarkedMan:

    The a Republican Party actively harms our democracy.

    To pretend that once the Republicans have broken the court that the Democrats should respect rules and norms that no longer apply is absurd.

    Agreed, but I’m coming around to the conclusion that pretending Democrats can fix this mess is itself absurd. One spouse cannot save a marriage that the other is determined to destroy.

    13
  5. Kathy says:

    I’m beginning to take seriously the Fermi Paradox solution hypothesis which holds humans are quarantined by other sentient species to contain our stupidity.

    5
  6. OzarkHillbilly says:

    But the actions of……. elected Republicans…… were shameful.

    Same as it ever was.

    7
  7. OzarkHillbilly says:

    @Kit:

    One spouse cannot save a marriage that the other is determined to destroy.

    QFT.

    3
  8. Daryl and his brother Darryl says:

    I can only hope there is a huge backlash, in future elections, over this and these Republicans pay a price for their wanton disregard for the public health and the rights of the citizens of WI.
    However, my much larger concern is that the Republicans on the SCOTUS has again shown themselves to be partisan operatives, completely devoid of integrity.
    The dissent is pretty powerful, in it’s simple clarity, if you have a chance to read it.

    The majority of this Court declares that this case presents a “narrow, technical question.” Ante, at 1. 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 possible. 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.

    13
  9. Mu Yixiao says:

    I agree with most of what you’ve said, with one exception (in the quote from Millhiser).

    Republicans have fought tooth and nail against nearly any effort […] to make it easier for voters to cast mail-in ballots

    News about how to get a mail-in ballot has been going out for weeks. And it’s incredibly simple. Go to MyVote.WI.gov, confirm you’re registered (search by name and address), then click “send me a ballot”.

    If you’re not currently registered (I wasn’t because I was out of the country for so long), you type in your name, address, birthdate, and ID number, then take a picture of your ID, and click “register me”.

    Or… you could have stopped by City Hall and picked one up in person. Most municipalities I’ve heard from also have drop-off options so you didn’t need to mail it. Getting the ballots was easy. My 88-year-old mother did it.

    Also… this is more than just a presidential primary. This is the general election for municipalities and counties. In my area, there are 17 local and county positions are in play. Milwaukee gets all the news…

    The city of Milwaukee, Wisconsin, is holding general elections for mayor, city attorney, city comptroller, city treasurer, and all fifteen common council members

    Those are the people that are going to be making the decisions about how Milwaukee (the hardest-hit city and county in WI) deals with COVID going forward.

    Is this a shit-show? Yes.
    Should this have been dealt with weeks ago? Yes.
    Is there partisan bullshit all around? Yes.

    But there’s more riding on it than just Biden &. Trump in a primary.

    3
  10. Kari Q says:

    @Mu Yixiao:

    News about how to get a mail-in ballot has been going out for weeks. And it’s incredibly simple.

    Sure it’s easy to request an absentee ballot, but what about receiving it?

    We, like you, have heard of people that are experiencing delays in receiving their ballots. We know that the postal service has advised that mail can take up to a week to be received by the voter or by the clerk on either side of the process,” says Wolfe.

    However, Action 2 News has heard from viewers who reached out to us, who say it has been weeks since they requested a ballot.

    https://www.google.com/amp/s/www.cbsnews.com/amp/news/supreme-court-absentee-voting-in-wisconsin/

    “A voter cannot deliver for postmarking a ballot she has not received. Yet tens of thousands of voters who timely requested ballots are unlikely to receive them by April 7, the Court’s postmark deadline.”

    17
  11. Daryl and his brother Darryl says:

    @Daryl and his brother Darryl:

    “…the Republicans on the SCOTUS has again shown themselves to be partisan operatives, completely devoid of integrity.”

    If you have any doubt about this it is worth considering that the SCOTUS is using the pandemic as a reason for not hearing the case re: Trump’s Tax returns…while at the very same time…forcing WI voters to chose between their health and safety, and their right to vote.

    12
  12. Kurtz says:

    I have very little doubt that if the situation were reversed, some, or perhaps even most, Dems would do the same thing.

    But as it stands in this era, the GOP consistently fights to have fewer people eligible to vote. Then they do everything they can to make it more difficult for those still eligible to actually vote.

    This should bother anyone who has a true commitment to republican principles. (small-r, of course.)

    2
  13. Daryl and his brother Darryl says:

    @Mu Yixiao:
    You’re missing the issue, per usual.
    People who requested the absentee ballots by the established deadline, are not RECEIVING the ballots in time to return them with the required postmark.
    Hence the SCOTUS dissent:

    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.

    Emphasis, mine.

    11
  14. James Joyner says:

    @Daryl and his brother Darryl:

    If you have any doubt about this it is worth considering that the SCOTUS is using the pandemic as a reason for not hearing the case re: Trump’s Tax returns…while at the very same time…forcing WI voters to chose between their health and safety, and their right to vote.

    The Wisconsin Supreme Court, not the US Supreme Court, ruled that the elections must go according to the date set in Wisconsin law. The US Supreme Court merely overturned a lower court’s improper extension of the date to vote absentee.

    4
  15. James Joyner says:

    @Kari Q:

    It’s not inexplicable.

    I wrote the subhed before finishing the article and, yes, as noted in the OP, the reason was obvious once I read articles other than the POLITICO and CNBC pieces I started with. I changed the subhed within a couple minutes of publication so I’m surprised you saw it.

    3
  16. Teve says:

    @Kit: I would not be remotely surprised if an irreconcilable political crisis happens in this country in the next 20 years. At some point New York, California, Massachusetts, etc. are going to ask themselves, why are we subsidizing Cletuses and Jethros and Darleens who strangle our ability to solve problems effectively.

    11
  17. mattbernius says:

    With regards to the Supreme Court and Wisconsin, the far more important case happened about a year ago:

    https://www.wpr.org/us-supreme-court-ruling-effectively-ends-wisconsin-gerrymandering-challenge

    Wisconsin has been gerrymandered by Republicans to an extensive degree:

    https://www.jsonline.com/story/news/blogs/wisconsin-voter/2018/12/06/wisconsin-gerrymandering-data-shows-stark-impact-redistricting/2219092002/

    And so long as the majority of Supremes see that as a State Issue these types of decisions can happen. And former Republicans can wag their fingers at the current legislatures and their craven scorched earth policies to hold onto power via fundamentally undemocratic means, but in the end nothing changes.

    4
  18. Mu Yixiao says:

    @Daryl and his brother Darryl:

    You’re missing the issue, per usual.
    People who requested the absentee ballots by the established deadline, are not RECEIVING the ballots in time to return them with the required postmark.

    That’s a separate issue. That’s from the SCOTUS decision which (rightly) said that the governor does not have the legal authority to change election dates.

    Where the glitch is in the system between requesting (which is simple–contrary to what Millhiser says) and receiving, is unknown. Did everyone wait until the last day (April 2)? Are the municipalities not sending them out promptly? Are they sitting in the central or local post office waiting to be sorted and delivered?

    Do you really want SCOTUS to give governors across the country authority to unilaterally change elections? Because that’s what it sounds like you’re saying.

    Did the Republican-lead legislature screw up big-time in not going along with changes earlier? Yes. No argument from me.

    But my points still stand: 1) it was easy to request a ballot 2) SCOTUS made the right decision (even if I don’t like how it’ll shake out in this particular instance).

    1
  19. MarkedMan says:

    @James Joyner: Years ago you and I would go back and forth about whether the Republican leadership was deliberately using racist dog whistles to incite the Republican electorate. You insisted that was in the past and Republicans were no more likely to be racist than anyone else. And you justified this by insisting that if any individual comment or action by Republican leadership could be shoehorned into a non-racist explanation, no matter how much of a stretch, then we must give the benefit of the doubt. As I remember you kept this up until we had an actual white supremacist, Stephen Miller, setting immigration policy, literally sending immigration agents to pull infants from the arms of their parents, with no hope of ever being returned.

    It seems to me you were reluctant to look at the totality of what was going on, which rendered the racism obvious, but instead insisted on taking what Republican leadership said at face value. It also seems to me that you are going down the same path with the Republican Supreme Court.

    18
  20. Kit says:

    Does anyone doubt that on “ narrow, technical questions” this court couldn’t reach whatever verdict Republicans happen to need at the moment? We’ve got a legislature that’s been feckless for a generation, a judiciary that is rotting from the head down, and an executive that’s been accumulating power since the founding. I wonder how this ends.

    5
  21. inhumans99 says:

    @Teve:

    Teve, I only half-joked with a family member that we should just let the Red/President Trump states secede from the Union (this includes places like AZ, WY, and the cluster of Southern States + we can give them FL and TX if they insist, but TX and FL are not as all in on Trump as other states so they might want to remain members of the greater U.S.A., we will let them decide).

    There is all this talk/fear (on both sides I might add) of folks picking up guns/grenades/bazookas/throwing Covid Infected Tigers at each other and just all around madness as we fight with each other like cats and dogs but who says we need another Civil War or Revolution, or more to the point that the next conflict in the U.S. pitting citizens against citizens does not need to be a bloodless conflict? Both sides never need to pick up those tigers to hurl at each other, rather a piece of paper can be placed on a table and signed by those who want to do their own thing.

    Easy peasy lemon squeezy the Red States get to form a coalition and make up their own laws, well…whatever they heck they want to do because I can care less as I will be in CA and am fine adhering to the laws we have in place in this great state.

    What I am about to say may sound humorous but I sincerely believe that one of the primary reasons why the GOP so desperately needs to hold on to their majority in Congress is that if the folks on the other side of the aisle (i.e., Liberals) get enough power maybe someone gets the wise idea to force the states to break apart from the U.S.A. and have them form their own country.

    I bet this scares some folks in the GOP and having enough control now to finally overturn Roe V. Wade is certainly a plus, but losing the ability to overturn Roe V. Wade is not what keeps some folks in the GOP up at night. Having to go it on their own without relying on tax dollars from places like NY, CA, WA state, NC (they have the Triangle w/lots of strong business propping up things in NC), FL, and TX (because FL and TX may not want to join this new conglomeration of states) is enough to give you a permanent case of heartburn.

    5
  22. Gustopher says:

    @Mu Yixiao:

    Where the glitch is in the system between requesting (which is simple–contrary to what Millhiser says) and receiving, is unknown. Did everyone wait until the last day (April 2)? Are the municipalities not sending them out promptly? Are they sitting in the central or local post office waiting to be sorted and delivered?

    Do you really want SCOTUS to give governors across the country authority to unilaterally change elections? Because that’s what it sounds like you’re saying.

    If the state dramatically cuts the number of polling places in the days leading up to an election, in a manner that has a disparate impact on protected classes, do you want the Supreme Court to do nothing?

    Because that’s what happened here. The reason was the pandemic, rather than just plain old racism, but this is exactly what happened.

    And it sets a precedent going forward, which may well be used in the fall if the pandemic continues or resurges. Is there any reason to believe that WI Republicans are worse than FL Republicans?

    If the state cannot safeguard the citizens’ right to vote, then citizens don’t have a right to vote.

    11
  23. Gustopher says:

    If the Wisconsin Secretary of State were to announce that, due to unforeseen circumstances, the ballots were shredded and dumped into Lake Superior, what would the recourse be?

    I would expect that it would lead to a new election in a few weeks time.

    Probably some legal charges, but since these are for state elections, would there be any federal charges? A good, kind, humanitarian governor might pardon anyone who in good faith shredded ballots and dropped them into a Great Lake.

    3
  24. Nightcrawler says:

    @Teve:

    20 years? Nope, the next few months.

    It’s clear that the U.S. cannot survive in its current form. The Constitution isn’t evergreen; faced with a global pandemic of a highly contagious and deadly illness, it’s literally killing people. A lot of people in Wisconsin are going to die because of it.

    The U.S. needs to be split up into several different countries. Secession will happen as the pandemic worsens, more people die, and the survivors see that voting has been rendered worthless.

    4
  25. Nightcrawler says:

    @Gustopher:

    If the state cannot safeguard the citizens’ right to vote, then citizens don’t have a right to vote.

    This is why we need the U.S. to be split up. Let the right-wingers have pure capitalism in the form of Galtland or whatever they want to call it. Let the left-wingers have the California Socialist Republic or whatever. Let other states band together and form countries with policies in between the two extremes of pure capitalism and pure socialism. Let everyone live with other people who agree with them, and be done with it.

    I don’t want to go back to the Time Before. I want to see something better come out of this. That’s how we’ll honor the dead. If I fall, that’s what I want built atop my grave: something better than this.

    1
  26. Daryl and his brother Darryl says:

    @Mu Yixiao:

    Did everyone wait until the last day (April 2)?

    So what if they did…a deadline is a deadline. As long as I’m ahead of it, all is OK.
    The fact is that they are not receiving the ballots in time…that’s not their fault.
    And tons of polling locations were closed at the last minute…exacerbating the health issue…also not their fault.

    Do you really want SCOTUS to give governors across the country authority to unilaterally change elections? Because that’s what it sounds like you’re saying.

    I want the Government to protect the right to vote, at all costs, and not suppress the vote…which is clearly what is happening here.
    Republicans fight tooth and nail to protect single cell organisms and the rights of ammo-sexuals. They should work just as hard to protect the right to vote.

    12
  27. Nightcrawler says:

    @inhumans99:

    I fully agree, but I don’t see two countries. I see several coming out of this.

    For example, the culture in New England is quite different than that in NY and parts further south. NY is more likely to band together with Jersey, PA, and maybe DE. MD and VA are wildcards, though probably more likely to go with those states than the ones just mentioned.

    Conversely, the culture of the South is quite different than the West. AL’s culture is different than what you’d see in WY or MT.

    We need to just split this country up. Let people live among those of their own political orientation. Conservatives want a Galtland; let them have it.

    1
  28. Mu Yixiao says:

    @Gustopher:

    If the state dramatically cuts the number of polling places in the days leading up to an election, in a manner that has a disparate impact on protected classes, do you want the Supreme Court to do nothing?

    Because that’s what happened here. The reason was the pandemic, rather than just plain old racism, but this is exactly what happened.

    That is not what happened here.

    “The state” did not cut the number of polling places.

    The news is talking primarily about Milwaukee not being able to staff polling stations because they can’t get enough workers. If there were enough workers, those polls would be open. The lack of polling stations is logistics, not politics.

    1) The Democratic governor tried to extend the dates when polls could receive ballots. SCOTUS (correctly, in my opinion) said that he doesn’t have the authority to do that.

    2) The Democratic governor tried to close all polls in the state. The WiSC (correctly, in my opinion) said he doesn’t have the authority to do that.

    3) The Republican-majority legislature has been a collective ass-hat about the whole thing, but they have done so by, basically, doing nothing and telling the governor he has to follow the law. The fact that they have the ability to change that law is not lost on me. Morally, they’re solidly in the wrong. Legally… they’re in the right.

    I don’t want the governor to have the ability to change elections at a whim–no matter which party it is. If Evers was allowed to close the polls, move the election, extend it, whatever… then every red-state governor would have that authority. And if all the governors have that authority…. would Trump?

    2
  29. Han says:

    Given the original sin of unnecessarily holding the election in the midst of a pandemic, the Supreme Court almost certainly got the law right. Wisconsin law, consistent with the laws of most if not all other states, requires absentee ballots be postmarked by election day. It’s not within the province of judges to arbitrarily re-write election law.

    The reporting I’m seeing is that this is absolutely not true. It is SCOTUS who is making new election law.

    A lower court judge had changed the date of when absentee ballots must be received by Wisconsin election officials from April 7 to April 13, but did not state anything about when the ballot must be postmarked. The state law does not have a requirement for when a ballot must be postmarked, only when it must be received.

    The Supreme Court majority opinion — focused on concerns that voters would be able to fill out and mail absentee ballots after election day — ordered that Wisconsin’s absentee ballots must be postmarked or hand-delivered by election day to be counted.

    That possibly unintentional high court endorsement of a “postmarked by election day” standard, rather than a “received by election day” standard that many states have, is the key holding beyond the Wisconsin election, said Mark Elias, an election lawyer for Democrats nationwide.

    SCOTUS should not even been involved in this. Given the unprecedented numbers of absentee ballots being requested in the middle of a pandemic, such that a large quantity of people will not even receive them by election day, extending the time available to return them in no way “fundamentally” alters the nature of the election. It is no different than allowing those people already in line when the polls close to vote, even though poll closing time has passed. In fact, to parallel that comparison more precisely (and protect against malfeasance in deliberately not delivering absentee ballots), the acceptance of absentee ballots should have been extended to X number of days after the last absentee ballot request was filled. Requests having been made prior to voting day, of course.

    6
  30. Han says:

    @Mu Yixiao:

    The lack of polling stations is logistics, not politics.

    Which polling stations close, and which remain open, absolutely is politics.

    8
  31. Michael Cain says:

    Just as a remark, almost any attempt to press an absentee ballot system intended to handle a small fraction of the total ballots cast into use as the main balloting system on relatively short notice will end badly. The problems WI is/will be experiencing are easy to predict: requests will be lost; ballots will be delivered late; ballots will be returned late; since polling places will be open, there will be numerous mistakes handling persons who both requested an absentee ballot and showed up to vote in person; many absentee ballots will be rejected and the voters won’t be given a chance to correct the problem. Outcomes will be horribly inconsistent from county to county.

    Unsurprisingly, these are exactly the problems that vote-by-mail states (this year CO, HI, OR, UT, WA) spent lots of time and effort solving before they deployed their systems.

    7
  32. Raoul says:

    When you see two supreme courts rule the way they did- the opinions which directly affect one and indirectly the other- one truly has to wonder about their legitimacy. Never in a million years I would have thought risking one’s life to assert one constitutional rights would be seen approvingly by judges. I guess we are all MLK now.

    7
  33. Daryl and his brother Darryl says:

    @Mu Yixiao:

    The lack of polling stations is logistics, not politics.

    Not when the closing of polling places disproportionately, and intentionally, affects certain groups of people.

    11
  34. Daryl and his brother Darryl says:

    @James Joyner:

    The US Supreme Court merely overturned a lower court’s improper extension of the date to vote absentee.

    The SCOTUS “merely” forced people to chose between the health and safety of themselves and others, and the right to vote. A choice made necessary by the actions of others, and though no fault of their own.

    4
  35. Daryl and his brother Darryl says:

    Ironical that this was the first SCOTUS decision issued remotely…and it is forcing people to go out and risk their lives, and the lives of others, to exercise their right to vote. But Republican’s are hypocrite’s, so no surprise there.
    If Sanders had done the right thing and dropped out this Primary would not be necessary. Yes, there would still be a ton of local races. Still…Sanders’ ego is not helping.

    3
  36. EddieInCA says:

    @Mu Yixiao:

    Bullsh*t. It’s not easy. You’re speaking from a complete position of privilege. You may not believe it, and you obviously don’t know it, but there’s a whole lot of people out there that don’t own computers. They don’t have the Internet. That can’t just go to a website online to print out a request for a ballot. WTF? Are you that blind to understand what is actually going on in inner cities? Or, do you just not care?

    9
  37. Slugger says:

    I live in a vote by mail state. It is easy. For years I found it a nuisance to vote because election day was a Tuesday making it inconvenient for employed people. Many countries have weekend voting for that reason. I started requesting absentee ballots, and then the state went mail vote.
    The USA makes it hard for people to vote. That is our reality.

    4
  38. al Ameda says:

    Again, Chief Justice Roberts shows us that he is no advocate of supporting protecting or facilitating voting rights. He was the key vote and opinion to eviscerate the voter rights act of 1964-65.

    And now, with the very serious external circumstances of the Virus Pandemic, and with 5 polling places open (normally 180) he declines to support what appears to be a common sense request to move the date.

    I used to think Roberts was a normal non-movement conservative, now with Gorsuch and Kavanaugh on board I’m not excited about where this court will be going.

    6
  39. Mu Yixiao says:

    @EddieInCA:

    You may not believe it, and you obviously don’t know it, but there’s a whole lot of people out there that don’t own computers. They don’t have the Internet.

    And far more of those are going to be in rural counties than in urban counties like Milwaukee (Milwaukee has 100% broadband coverage and 72.1% houshold adoption. Athens has 23.3% coverage, Somerset has 8.0% coverage, and only 5.6% of Pardeeville is able to get broadband.) So if you want to complain that people don’t have access, you should be complaining about the rural “red” counties, not Milwaukee.

    But that’s not the point. Millhiser, in the OP is quoted as saying:

    Republicans have fought tooth and nail against nearly any effort […] to make it easier for voters to cast mail-in ballots

    Wisconsin is a “no excuse” absentee voting state. This means any eligible voter can request a mail-in ballot. And they only need to do it once. They can specify that they want to receive all ballots for this election year.

    Since Milwaukee is the place everyone is talking about: Registered voters in that city could request an absentee ballot by…

    * USPS (snail mail)
    * e-mail
    * Online form (explained in my post)
    * Fax
    * Showing up at the municipal building and asking for one

    I’m asking this honestly: Short of mailing everyone a ballot automatically (which the state is not set up to handle, and almost certainly could not have been ready, even if they tried to implement it months ago), how would you propose to make it easier?

  40. Mu Yixiao says:

    @al Ameda:

    And now, with the very serious external circumstances of the Virus Pandemic, and with 5 polling places open (normally 180) he declines to support what appears to be a common sense request to move the date.

    That’s not the issue in question, however. It’s whether the governor has the authority to ignore the law and unilaterally make changes to the election. Remember: if the said Evers can do it, they’re creating a precedent for every other governor to do the same.

  41. charon says:

    @inhumans99:

    (this includes places like AZ, WY, and the cluster of Southern States + we can give them FL and TX if they insist, but TX and FL are not as all in on Trump as other states so they might want to remain members of the greater U.S.A., we will let them decide).

    That is so special, that you think AZ is redder than TX.

    1
  42. EddieInCA says:

    @Mu Yixiao:

    I’m asking this honestly: Short of mailing everyone a ballot automatically (which the state is not set up to handle, and almost certainly could not have been ready, even if they tried to implement it months ago), how would you propose to make it easier?

    Well, for starters, I’d take into consideration a once-in-one-hundred-years pandemic into the equation. You seem to be burying the lede. Why is that?

    5
  43. alkali says:

    Given the original sin of unnecessarily holding the election in the midst of a pandemic, the Supreme Court almost certainly got the law right.

    In fact, the legal result here is certainly wrong.

    1) The Wisconsin code grants the governor power in emergencies to “[i]ssue such orders as he or she deems necessary for the security of persons and property.” (Other provisions of the code make the governor’s power to declare a state of emergency limited to 60 days and revocable by a vote of the legislature.) It is unclear why this power does not extend to ordering a short delay in a scheduled election.

    2) As Marty Lederman pointed out at Balkinization: The parties agreed, at least, that the governor had the power to extend the deadline for receipt of absentee ballots from April 7 to April 13, but the SCOTUS majority held that the ballots had to be postmarked by April 7 “as state law would necessarily require.” In fact, there is no provision of Wisconsin law that requires that ballots be postmarked by any particular date, or indeed that they be postmarked at all.

    3
  44. DrDaveT says:

    While most of the ire this morning is being directed at Republican justices on the Wisconsin and US Supreme Courts, it seems to me that they ruled correctly and reasonably. No, the outrage should be directed at Republican legislators in Wisconsin who are either downplaying the threat from the pandemic, engaging in gross voter suppression, or both.

    When you’re driving your car, and the person ahead of you does something dumb, or there is a car parked in a through-lane, and you plow into it, the law does not say “the outrage should be directed at the idiot whose actions created this hazard”. It says, consistently, that you have an obligation to avoid harm where that is possible, and that by tailgating or inattention you are responsible.

    Both Supreme Courts here had ample opportunity to avoid harm, and (as noted above) could easily have found legal grounds to do so. Indeed, 4 of 9 SCOTUS justices found such grounds.

    Narrow technical points of law are not decided 5-4 on partisan lines.

    5
  45. Mu Yixiao says:

    @EddieInCA:

    Well, for starters, I’d take into consideration a once-in-one-hundred-years pandemic into the equation. You seem to be burying the lede. Why is that?

    Because it’s a deflection–you responded with a statement of the situation and not answer to the question.

    Why should a “once-in-a-hundred-years pandemic” supersede the Constitution or the rule of law? (It didn’t in 1918)

    And… as a journalist: No, I’m not “burying the lede”. The lede is that both the WI and US supreme courts upheld the rule of law and separation of powers. That’s good. That’s what we want in a democracy.

    If you really think that Tony Evers should have the power to decide when, where, how, if, elections take place… then you’ll happily give that authority to Trump… right?

    Are you ready to grant that level of authority to every executive? In every state?

    The rules apply to both sides, or they don’t apply at all.

    Every power you insist the blue have, you hand to the red on a silver platter. And you can’t bitch when they use it–because you insisted it be given.

    These decisions assured that you “enemies” don’t have the power to declare a dictatorship. Because they declared that you don’t have that power.

    If you’re pissed off about that, then you don’t care about democracy–you just want your side to be the dictators.

    I’ve got no taste for dictators of any stripe.

  46. EddieInCA says:

    @Mu Yixiao:

    Your position is naive at best. And sad, actually. One party wants more people to vote legally. One party wants to keep people from voting.

    Why should a “once-in-a-hundred-years pandemic” supersede the Constitution or the rule of law? (It didn’t in 1918)

    And in 1776 we didn’t have machine guns or bazookas. It’s not 1918. The constitution clearly states that states are in charge of their elections. Additionally, and more importantly, the Constitution and rule of law are REGULARLY ignored for much less than a once in a hundred years pandemic. Bush V. Gore, anyone? When was the last time Article 1, Section 8 was invoked? I’ll wait.

    And… as a journalist: No, I’m not “burying the lede”. The lede is that both the WI and US supreme courts upheld the rule of law and separation of powers. That’s good. That’s what we want in a democracy.

    No. That’s your lede. The actual lede is “Supreme Court tells Wisconsin citizens to risk their lives to vote.

    If you really think that Tony Evers should have the power to decide when, where, how, if, elections take place… then you’ll happily give that authority to Trump… right?

    I think it’s reasonable, when confronted with extra ordinary circumstances, and makes sense to adjust things to make life as safe as possible for all citizens. Yes. I think, under extraordinary circumstances, Governors, and President Trump, should be able to adjust as needed. We did it for 9/11 and that was a local event, not even national.

    Are you ready to grant that level of authority to every executive? In every state?

    Yes. Under extraordinary circumstances – like 9/11, or Pearl Harbor, or the Spanish Flu, or the Covid19 virus.

    The rules apply to both sides, or they don’t apply at all.

    In Wisconsin, that’s already the case, and has been for more than 10 years.

    Every power you insist the blue have, you hand to the red on a silver platter. And you can’t bitch when they use it–because you insisted it be given.

    Understood and agreed. I have no problem with that. But I don’t remember the Dems keeping a a vote from GW Bush’s SC Nominee. I don’t remember the Dems refusing to confirm GWB judges.

    These decisions assured that you “enemies” don’t have the power to declare a dictatorship. Because they declared that you don’t have that power.

    You have that exactly backwards.

    If you’re pissed off about that, then you don’t care about democracy–you just want your side to be the dictators.

    No. I want as many people to vote as possible. Full stop. Again. One party wants as many people to vote legally. Another party does not. That’s the bottom line.

    4
  47. gVOR08 says:

    Gov DeWine postponed the Ohio primary at the last minute. He sought a court order to delay the election, was denied, and then had his Health Dept Director declare a health emergency. Unlike WI, I haven’t seen that DeWine made any effort to get the legislature to act. I haven’t seen any speculation as to what political gain DeWine and Ohio Republicans might get from delay, unlike WI where the consensus seems to be the GOPs are ratfracing to protect a state Supreme Court judge. Whatever is going on, it seems we’ve already established a precedent that when it comes to governors delaying elections, like so many other things, IOKIYAR.

    1
  48. Robert Sharperson says:

    @Nightcrawler:
    One quick change. Wash DC is not going to fight NYC to be the center of attention so we can make DC Maryland and Virginia a state. We can split Delaware taking the southern part that includes our vacation homes. (LOL)

  49. Robert Sharperson says:

    @EddieInCA:
    My 83 year old educated former military officer dad who owns a computer w dial up would be cussing up a storm trying to request a ballot.

    2