[EL] SCOTUS order ---ANALYSIS

Mon Apr 6 21:28:53 PDT 2020

I've posted a version of this here
<https://balkin.blogspot.com/2020/04/where-supreme-court-went-wrong-in.html>
.

On Mon, Apr 6, 2020 at 8:18 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://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
> 600 New Jersey Avenue, NW
> Washington, DC 20001
> 202-662-9937
>
>

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