[EL] SCOTUS order ---ANALYSIS

Mon Apr 6 19:43:47 PDT 2020

On the conlawprof list, I gave this response to Marty’s argument that Wisconsin law does not have a dispatch deadline.

Absent invention of a time machine, the law required that any ballots returned by mail would have had to be be mailed by April 7. Everyone seems to have interpreted the statute to require that implicitly. As a practical matter, ballots had to be mailed a few days earlier, but it's not inconceivable (with apologies to The Princess Bride) that there might be same day delivery.

The district court extended both the receipt deadline, which everyone seems to have thought appropriate, and the implicit dispatch deadline.

It may seem unusual way to interpret a statute as including  such an implicit requirement, but it is consistent with the general national understanding that a voter can't vote after election day -- which requires that the absentee ballot be dispatched no later than election day.

Take a look at www.vote.org/absentee-ballot-deadlines. Not a single state allows a ballot to count, if it isn't received by election day or mailed by election day. Lots of states require receipt by election day. (West Virginia allows ballots that are mailed but lack postmarks to be counted if received no later than the day after election day.) It seems quite reasonable to interpret Wisconsin law in accord with the uniform national understanding.

A legislator would not have thought it necessary to include an explicit dispatch deadline. Can we believe that a legislator would have anticipated that a court would extend the date by which ballots must be received, and that it would be necessary to state explicitly the uniform national understanding that ballots dispatched after Election Day will not be counted?

No one seems to have argued that there was no such dispatch deadline, right? They all seem to have understood that the receipt deadline implicitly included the standard dispatch requirement.

The district court changed both the receipt deadline and the implicit dispatch deadline. The S. Ct. reversed the change in the dispatch requirement.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine University
Rick J. Caruso School of Law
________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Marty Lederman <Martin.Lederman at law.georgetown.edu>
Sent: Monday, April 6, 2020 6:10:27 PM
To: Jon Sherman <jsherman at fairelectionscenter.org>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] SCOTUS order ---ANALYSIS

You appear to be right, Jon:  The district court judge'sinjunction<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 reverseda 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<mailto: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<mailto: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<mailto: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 beenextended from Tuesday, April 7, to Monday, April 13. That extension, which isnot 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 bemailed 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 requiremoving 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 bereceived by clerks by the 7th.  And the parties agree (or don't disagree) that the district court properly extendedthat deadline--the only one in Wisconsin law--to the 13th.

Once thereceipt 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 theU.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<mailto: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.

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From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Date: Monday, April 6, 2020 at 4:20 PM
To: Election Law Listserv <law-election at uci.edu<mailto: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>

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