[EL] SCOTUS order ---ANALYSIS

Mon Apr 6 17:18:31 PDT 2020

Here's what's weird about the case, and, best I can tell, unjustifiable
about the majority opinion.  The per curiam sets up the question this way:

In this Court, *all agree* that the deadline for the municipal clerks to
*receive* absentee ballots has been *extended from Tuesday, April 7, to
Monday, April 13*. That extension, which is *not challenged in this Court*,
has afforded Wisconsin voters several extra days in which to mail their
absentee ballots. The sole question before the Court is whether absentee
ballots now must be *mailed and postmarked* by election day, Tuesday, April
7, *as state law would necessarily require*, or instead may be mailed and
postmarked after election day, so long as they are received by Monday,
April 13.

The majority holds that the Constitution doesn't require *moving* the
mailing "deadline" from tomorrow to April 13--or, in any event, that the
district court was wrong to insist on such an extension at this late hour.
But here's the (strange) rub:  If my reading is correct, *there is no such
mailing deadline* in state law.  What state law requires is that ballots
must be *received *by clerks by the 7th.  And the parties agree (or don't
disagree) that the district court properly extended *that *deadline--the
only one in Wisconsin law--to the 13th.

Once the *receipt *date is properly set as the 13th (as it has been), what
is to *prohibit* someone from mailing a ballot between the 7th and the
13th, or to deliver a ballot to an election official on or before the
13th?  The majority proceeds as if there's a state law rule requiring
mailing and postmarking by the 7th ("as state law would necessarily require
")--*but there's not*.  To be sure, as a *practical *matter state law
doesn't allow a ballot to be mailed after the receipt deadline--because
that's metaphysically impossible.  But now, the receipt deadline is, as all
agree, the 13th--and there's no other law that prohibits mailing the
ballots between now and then.

No other law, that is, except the per curiam opinion itself:  It is the *U.S.
Supreme Court*, not Wisconsin law, that has now established April 7th as a
legal deadline for mailing and postmarking ballots.  And as best I can
tell, there's no legal warrant for the Court adding such a restriction to
the franchise that Wisconsin's own state law does not impose.

I should note that this is based solely on the briefs filed in the
SCOTUS--there might be something in Wisconsin law that I've missed.

On Mon, Apr 6, 2020 at 7:46 PM Rick Hasen <rhasen at law.uci.edu> wrote:

> Breaking: Supreme Court on 5-4 Vote Reverses District Court on
> Late-Arriving Absentee Ballots in Wisconsin Race. This is a Bad Sign for
> November in a Number of Ways. <https://electionlawblog.org/?p=110447>
>
> Posted on April 6, 2020 4:16 pm <https://electionlawblog.org/?p=110447>
> by *Rick Hasen* <https://electionlawblog.org/?author=3>
>
> You can read the opinion and dissent here
> <https://electionlawblog.org/wp-content/uploads/19A1016.pdf>.
>
> In some ways, it is unsurprising that the Court divided 5-4
> (conservative/Republican Justices against liberal/Democratic Justices) on a
> question whether the emergency created by COVID-19 and the dangers of
> in-person voting justified a district court order to extend *the receipt* of
> absentee ballots from April 7 to April 13 (only ballots *postmarked* by
> April 7 will be counted).
>
> On the one hand, conservatives are wary of federal courts rewriting
> election rules at the last minute (the *Purcell *principle
> <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676> idea, which
> gets heavy play here). On the other hand, the liberals point out that
> because of the backlog of absentee ballot requests, there are something
> like 10,000 voters who will not get an absentee ballot by April 7 in time
> to send it back. They see this as disenfranchisement because it is too
> dangerous for voters to go to the polls under the conditions of the
> pandemic. As Justice Ginsburg wrote in her dissent of these voters: “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. “
>
> So this looks like a typical divide between conservatives who favor strict
> rules even when they risk disenfranchisement of voters versus liberals who
> are willing to modify election rules to protect voting rights. We’ve seen
> this play out many times in Supreme Court voting rights cases as in the
> past.
>
> On the other hand, 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. Like the
> Wisconsin Supreme Court, the U.S. Supreme Court divided along partisan and
> ideological lines. Already in 2018, before COVID, the amount of
> election-related litigation had hit a record (data in my book, *Election
> Meltdown*). The year 2020 was likely to set a new record. But with
> election changes proliferating and a fight over expanded absentee balloting
> necessary to combat the COVID crisis, the amount of litigation is going to
> skyrocket. And it does not look like the courts are going to be able to do
> any better than the politicians in finding common ground on election
> principles.
>
> This means that there is a lot of work to do now to try to avoid election
> meltdown. More on that in coming weeks. But the message from today is:
> don’t expect the courts to protect voting rights in 2020.
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D110447&title=Breaking%3A%20Supreme%20Court%20on%205-4%20Vote%20Reverses%20District%20Court%20on%20Late-Arriving%20Absentee%20Ballots%20in%20Wisconsin%20Race.%20This%20is%20a%20Bad%20Sign%20for%20November%20in%20a%20Number%20of%20Ways.>
>
> Posted in Supreme Court <https://electionlawblog.org/?cat=29>
>
>
>
>
>
> *From: *Law-election <law-election-bounces at department-lists.uci.edu> on
> behalf of Rick Hasen <rhasen at law.uci.edu>
> *Date: *Monday, April 6, 2020 at 4:20 PM
> *To: *Election Law Listserv <law-election at uci.edu>
> *Subject: *[EL] SCOTUS order (analysis to come)
>
>
>
> https://electionlawblog.org/wp-content/uploads/19A1016.pdf
>
>
>
>
>
>
>
> --
>
> Rick Hasen
>
> Chancellor's Professor of Law and Political Science
>
> UC Irvine School of Law
>
> 401 E. Peltason Dr., Suite 1000
>
> Irvine, CA 92697-8000
>
> 949.824.3072 - office
>
> rhasen at law.uci.edu
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
>
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-- 
Marty Lederman
Georgetown University Law Center
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Washington, DC 20001
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