[EL] ELB News and Commentary 4/6/20

Mon Apr 6 22:03:45 PDT 2020

“Wisconsin justices block Tony Evers’ order to shut down election, U.S. Supreme Court restricts absentee voting”<https://electionlawblog.org/?p=110468>
Posted on April 6, 2020 9:59 pm<https://electionlawblog.org/?p=110468> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel recap<https://www.jsonline.com/story/news/politics/elections/2020/04/06/tony-evers-issues-order-shutting-down-tuesdays-election/2954626001/>.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>

“Why Coronavirus May Change How Americans Vote”<https://electionlawblog.org/?p=110466>
Posted on April 6, 2020 9:57 pm<https://electionlawblog.org/?p=110466> by Rick Hasen<https://electionlawblog.org/?author=3>

CNBC video report.<https://www.youtube.com/watch?v=AllPe4Tobdw>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Must-read NYT: “Wisconsin Election Fight Heralds a National Battle Over Virus-Era Voting”<https://electionlawblog.org/?p=110464>
Posted on April 6, 2020 9:54 pm<https://electionlawblog.org/?p=110464> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/04/06/us/politics/wisconsin-primary-voting-coronavirus.html>:

Wisconsin voters will face a choice between protecting their health and exercising their civic duty on Tuesday after state Republican leaders, backed up by a conservative majority on the state’s Supreme Court, rebuffed the Democratic governor’s attempt to postpone in-person voting in their presidential primary and local elections. The political and legal skirmishing throughout Monday was only the first round of an expected national fight over voting rights in the year of Covid-19.

The Republicans’ success came at the end of a day that left anxious voters whipsawed between competing claims from the governor, Tony Evers, and his opponents in the G.O.P.-controlled State Legislature over whether Tuesday’s election would proceed as planned. It rattled democracy in a key battleground state already shaken by a fast-growing number of cases of the coronavirus.

The governor had issued an executive order postponing in-person voting and extending to June the deadline for absentee ballots. But Republican leaders succeeded in getting the state’s top court to stay the decree.

And in a decision late Monday capping the election-eve chaos, the U.S. Supreme Court’s conservative-leaning majority dealt its own blow to Wisconsin Democrats. In a 5-4 vote, the majority ruled against their attempt to extend the deadline for absentee voting in Tuesday’s elections, saying such a change “fundamentally alters the nature of the election.” The court’s four liberal members dissented, with Justice Ruth Bader Ginsburg writing that “the court’s order, I fear, will result in massive disenfranchisement.”

On the surface, it was exceedingly high drama for what amounts to a seemingly foreordained Democratic primary vote between the likely nominee, former Vice President Joseph R. Biden Jr.<https://www.nytimes.com/interactive/2020/us/elections/joe-biden.html>, and Senator Bernie Sanders<https://www.nytimes.com/interactive/2020/us/elections/bernie-sanders.html>, who trailed substantially in a recent Wisconsin poll; a host of local contests; and a general election for a seat on the State Supreme Court now held by a conservative.

But what happens in Wisconsin has far broader implications for both parties.

The state stands as a first test case in what both national parties expect to be a protracted fight over changing voter rules to contend with the pandemic — potentially the biggest voting rights battle since the passage of the Voting Rights Act of 1965. Mr. Evers was trying to push Wisconsin still further toward voting by mail.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>

Wisconsin Supreme Court Issues Opinions to Accompany Its Earlier Orders Reversing Governor’s Postponement of Election<https://electionlawblog.org/?p=110462>
Posted on April 6, 2020 9:50 pm<https://electionlawblog.org/?p=110462> by Rick Hasen<https://electionlawblog.org/?author=3>

Majority and dissenting opinions<https://www.wicourts.gov/news/docs/2020AP608_2.pdf>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Morley: “Election Emergencies at the Supreme Court”<https://electionlawblog.org/?p=110459>
Posted on April 6, 2020 9:47 pm<https://electionlawblog.org/?p=110459> by Rick Hasen<https://electionlawblog.org/?author=3>

Michael Morley has written this extensive analysis <https://electionlawblog.org/wp-content/uploads/morley-rnc-dnc.docx> of today’s developments, which begins:

This post offers a new perspective on the Supreme Court’s emergency order in Republican National Committee v. Democratic National Committee, No. 19A1016 (U.S. Apr. 6, 2020)<https://electionlawblog.org/wp-content/uploads/19A1016.pdf>. It explains that the Court correctly mandated a higher showing for election postponements, which extend or change the deadline for casting votes to subsequent days, than for other types of modifications to election-related rules.  The Court had not previously articulated that principle before, however.  Thus, under the circumstances of this case, the Court should not have relied on it to reverse the lower court’s ruling.   Moreover, the ruling confirms that the Court will enforce the Purcell Principle on a categorical basis, presumptively reversing election-related injunctions that lower courts issue too close to an election rather than applying the traditional equitable factors governing stays.  The Court must recognize, however, that the Purcell Principle cannot fully apply in the context of election emergencies, which by their nature require responses to unexpected threats to the electoral process.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>

Marty Lederman: “Where the Supreme Court went wrong in today’s Wisconsin election decision (I think)”<https://electionlawblog.org/?p=110455>
Posted on April 6, 2020 9:44 pm<https://electionlawblog.org/?p=110455> by Rick Hasen<https://electionlawblog.org/?author=3>

Balkinization analysis<https://balkin.blogspot.com/2020/04/where-supreme-court-went-wrong-in.html>:

If I’m not mistaken, the Supreme Court just stayed a provision of a district court preliminary injunction that does not exist, and in so doing imposed a restraint on the franchise of Wisconsin voters that Wisconsin law itself doesn’t require….
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Guy Charles on Today’s Wisconsin SCOTUS Ruling<https://electionlawblog.org/?p=110453>
Posted on April 6, 2020 9:41 pm<https://electionlawblog.org/?p=110453> by Rick Hasen<https://electionlawblog.org/?author=3>

Interesting thread starts here<https://twitter.com/ProfGuyCharles/status/1247369974630486017>:
[cid:image002.jpg at 01D60C5F.3DC70D50]<https://twitter.com/ProfGuyCharles>
<https://twitter.com/ProfGuyCharles>
Guy-Uriel Charles at ProfGuyCharles<https://twitter.com/ProfGuyCharles>

<https://twitter.com/ProfGuyCharles/status/1247369974630486017>

I want to make one point about the Supreme Court's decision in the Wisconsin case that I'm surprised has not been made. The Supreme Court & the federal courts more broadly have actually not done a great job historically of providing remedies for structural disfranchisement. 1/7
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100<https://twitter.com/intent/like?tweet_id=1247369974630486017>
8:45 PM - Apr 6, 2020<https://twitter.com/ProfGuyCharles/status/1247369974630486017>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
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37 people are talking about this<https://twitter.com/ProfGuyCharles/status/1247369974630486017>

--
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<mailto:rhasen at law.uci.edu>
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http://electionlawblog.org<http://electionlawblog.org/>

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