[EL] SCOTUS order ---ANALYSIS

Mon Apr 6 18:10:27 PDT 2020

You appear to be right, Jon:  The district court judge's injunction
<https://www.supremecourt.gov/DocketPDF/19/19A1016/140887/20200404154635716_Emergency%20Application%20for%20Stay.pdf>*,
*like Wisconsin law, doesn't speak to mailing or postmark deadlines at
all.  Therefore the U.S. Supreme Court just reversed *a district court
order that does not exist*.  (Or am I missing something?)

On Mon, Apr 6, 2020 at 9:00 PM Jon Sherman <jsherman at fairelectionscenter.org>
wrote:

> Marty, that’s correct. I’m litigating one of the 3 cases in the
> consolidated action (and our claim is not before SCOTUS — our case focused
> solely on the witness requirement). But I can say that your analysis is
> correct. There is no postmark requirement in Wisconsin law because ballots
> must be received by close of the polls on Election Day. The initial PI
> extended the receipt deadline to April 13, no postmark requirement imposed.
> Upon a motion for clarification from the Wisconsin Elections Commission the
> following day, the Court amended its PI to enjoin all unofficial reporting
> of results until the 13th to preclude gamesmanship, still no postmark
> requirement. So effectively the Supreme Court further amends the PI rather
> than staying anything in it but it is not based on existing WI law.
>
> On Mon, Apr 6, 2020 at 8:21 PM Eric J Segall <esegall at gsu.edu> wrote:
>
>> The missing principle is Republicans must win voting cases in the Roberts
>> (non) Court.
>>
>> e
>>
>> Sent from my iPhone
>>
>> On Apr 6, 2020, at 8:20 PM, Marty Lederman <
>> Martin.Lederman at law.georgetown.edu> wrote:
>>
>> 
>> 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://nam03.safelinks.protection.outlook.com/?url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D110447&data=02%7C01%7Cesegall%40gsu.edu%7C429e5e7a3c214cb6829f08d7da896a35%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C637218156038089778&sdata=fo3JYGeIDTWtlr2irK%2BvbSqEji3M8MWwkeX%2F3QotaBk%3D&reserved=0>
>>>
>>> Posted on April 6, 2020 4:16 pm
>>> <https://nam03.safelinks.protection.outlook.com/?url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D110447&data=02%7C01%7Cesegall%40gsu.edu%7C429e5e7a3c214cb6829f08d7da896a35%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C637218156038089778&sdata=fo3JYGeIDTWtlr2irK%2BvbSqEji3M8MWwkeX%2F3QotaBk%3D&reserved=0>
>>>  by *Rick Hasen*
>>> <https://nam03.safelinks.protection.outlook.com/?url=https%3A%2F%2Felectionlawblog.org%2F%3Fauthor%3D3&data=02%7C01%7Cesegall%40gsu.edu%7C429e5e7a3c214cb6829f08d7da896a35%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C637218156038099774&sdata=GmGotOsvnUg2C8A2JEXkuZjBrxEOd9dWw5BAbKQoPwE%3D&reserved=0>
>>>
>>> You can read the opinion and dissent here
>>> <https://nam03.safelinks.protection.outlook.com/?url=https%3A%2F%2Felectionlawblog.org%2Fwp-content%2Fuploads%2F19A1016.pdf&data=02%7C01%7Cesegall%40gsu.edu%7C429e5e7a3c214cb6829f08d7da896a35%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C637218156038099774&sdata=oANEvbIe8rwReBvMESdv2J%2BfXpVNyig0m0ZgatJp%2Fwg%3D&reserved=0>
>>> .
>>>
>>> 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://nam03.safelinks.protection.outlook.com/?url=https%3A%2F%2Fpapers.ssrn.com%2Fsol3%2Fpapers.cfm%3Fabstract_id%3D2545676&data=02%7C01%7Cesegall%40gsu.edu%7C429e5e7a3c214cb6829f08d7da896a35%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C637218156038109769&sdata=VvKVaqLSIjBqXtT4YVYuBRq4lU87lxyhDMMIqZIZUsI%3D&reserved=0> 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.
>>>
>>>
>>> <https://nam03.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.addtoany.com%2Fshare%23url%3Dhttps%253A%252F%252Felectionlawblog.org%252F%253Fp%253D110447%26title%3DBreaking%253A%2520Supreme%2520Court%2520on%25205-4%2520Vote%2520Reverses%2520District%2520Court%2520on%2520Late-Arriving%2520Absentee%2520Ballots%2520in%2520Wisconsin%2520Race.%2520This%2520is%2520a%2520Bad%2520Sign%2520for%2520November%2520in%2520a%2520Number%2520of%2520Ways.&data=02%7C01%7Cesegall%40gsu.edu%7C429e5e7a3c214cb6829f08d7da896a35%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C637218156038119764&sdata=93Vwiqtb2kXfOZ8UuGI88yvhePt87yWzZK4btdvBSKc%3D&reserved=0>
>>> <image001.png>
>>>
>> Posted in Supreme Court
>>> <https://nam03.safelinks.protection.outlook.com/?url=https%3A%2F%2Felectionlawblog.org%2F%3Fcat%3D29&data=02%7C01%7Cesegall%40gsu.edu%7C429e5e7a3c214cb6829f08d7da896a35%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C637218156038129759&sdata=LbIv6DF%2BRRn2fj76jAHYmfsuqEv4OuIMmVqo8k2vLOY%3D&reserved=0>
>>>
>>>
>>>
>>>
>>>
>>> *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
>>> <https://nam03.safelinks.protection.outlook.com/?url=https%3A%2F%2Felectionlawblog.org%2Fwp-content%2Fuploads%2F19A1016.pdf&data=02%7C01%7Cesegall%40gsu.edu%7C429e5e7a3c214cb6829f08d7da896a35%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C637218156038129759&sdata=nIm3ekxnH1uB5dF66XPRLmP5%2F7fk8Pbfx3zuYyqQkBU%3D&reserved=0>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> --
>>>
>>> Rick Hasen
>>>
>>> Chancellor's Professor of Law and Political Science
>>>
>>> UC Irvine School of Law
>>>
>>> <https://www.google.com/maps/search/401+E.+Peltason+Dr.,+Suite+1000+%0D%0A+Irvine,+CA+92697?entry=gmail&source=g>
>>>
>>> 401 E. Peltason Dr., Suite 1000
>>> <https://www.google.com/maps/search/401+E.+Peltason+Dr.,+Suite+1000+%0D%0A+Irvine,+CA+92697?entry=gmail&source=g>
>>>
>>> Irvine, CA 92697
>>> <https://www.google.com/maps/search/401+E.+Peltason+Dr.,+Suite+1000+%0D%0A+Irvine,+CA+92697?entry=gmail&source=g>
>>> -8000
>>>
>>> 949.824.3072 - office
>>>
>>> rhasen at law.uci.edu
>>>
>>> http://www.law.uci.edu/faculty/full-time/hasen/
>>> <https://nam03.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.law.uci.edu%2Ffaculty%2Ffull-time%2Fhasen%2F&data=02%7C01%7Cesegall%40gsu.edu%7C429e5e7a3c214cb6829f08d7da896a35%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C637218156038139754&sdata=QeWeV8IdXX8qfGYY%2B%2FFIteh7J6bOTj%2BzIPYapdHw79c%3D&reserved=0>
>>>
>>> http://electionlawblog.org
>>> <https://nam03.safelinks.protection.outlook.com/?url=http%3A%2F%2Felectionlawblog.org%2F&data=02%7C01%7Cesegall%40gsu.edu%7C429e5e7a3c214cb6829f08d7da896a35%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C637218156038139754&sdata=Zwc4TaZhI%2FvQkPo2iJWIGM8c99ecWj2WaMXX98jPocc%3D&reserved=0>
>>>
>>>
>>>
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>>
>>
>>
>> --
>> Marty Lederman
>> Georgetown University Law Center
>>
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>
> --
> Jon Sherman
> Senior Counsel
> Fair Elections Center
> 1825 K Street NW, Suite 450
> Washington, D.C. 20006
> Phone: (202) 248-5346
> jsherman at fairelectionscenter.org
> www.fairelectionscenter.org
>

-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
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