[EL] SCOTUS order ---ANALYSIS

Tue Apr 7 07:46:37 PDT 2020

Marty --

Thanks for the reply.

We agree on the Wisconsin legislature's shirking its duty.

My other question (for anyone), is why didn't the Governor do what was done
in Ohio: Issue an order prohibiting congregating, which would effectively
prevent all in-person voting? Would this have forced the legislature to
act? (I understand that the degree or partisanship in WI is greater than
Ohio, that the WI GOP doesn't trust Evers because of the games he tried to
play with the special election for the open congressional seat, etc., so
maybe it would not have mattered.)

JHA

----
Jonathan H. Adler
Johan Verheij Memorial Professor of Law
Director, Coleman P. Burke Center for Environmental Law
Case Western Reserve University School of Law
11075 East Boulevard
Cleveland, OH 44106
ph) 216-368-2535
fax) 216-368-2086
cell) 202-255-3012
jha5 at case.edu
SSRN: http://ssrn.com/author=183995
Blog: http://reason.com/people/jonathan-adler/blogs
<http://www.washingtonpost.com/news/volokh-conspiracy/wp/author/adlerj/>
Web: http://www.jhadler.net

On Tue, Apr 7, 2020 at 10:22 AM Marty Lederman <
Martin.Lederman at law.georgetown.edu> wrote:

> You might well be right, Jonathan--perhaps Section 323.12(4)(b) is best
> construed to allow the governor to act in ways that would otherwise be
> ultra vires but *not *contra legem (i.e., to act in what would otherwise
> be Youngstown Category II but not Category III).  I'd certainly be keen to
> read it that way, particularly if a legislative override in Wisconsin would
> require the Governor's own signature or a supermajority.  I simply don't
> know enough about the provision, however--including why it was included in
> the law, and whether it tracks provisions in other states--to offer any
> confident assessment.
>
> The real scandal here, of course, is that the Wisconsin legislative
> majorities, which should have simply postponed the election, are more
> committed to suppressing Democratic votes than to protecting its citizens
> from a deadly disease.  Such is the state of our union.
>
> On Tue, Apr 7, 2020 at 10:13 AM Jonathan Adler <jha5 at case.edu> wrote:
>
>> Marty -
>>
>> A question about your post with regard to Section 323.12(4)(b) of the
>> Wisconsin Code, which authorizes the Governor to "Issue such orders as he
>> or she deems necessary for the security of persons and property," during a
>> state of emergency. You suggest that this delegation of power to the
>> executive to issue orders may include the authority to suspend statutory
>> requirements.  Are you aware of any such delegation to an executive or
>> agency -- in Wisconsin, other states, or at the federal level -- that uses
>> similar or equivalent language to authorize the suspension of statutory
>> requirements? I've been trying to think of some, and all of the ones I can
>> identify that allow an executive or agency to suspend statutory
>> requirements say so explicitly. So, for instance, Section 203 of the
>> Communications Act expressly gives the FCC to modify requirements of the
>> relevant statutory section; Section 102(c) of the IIRIRA gives the DHS
>> secretary express authority to "waive legal requirements" and so on.
>> Similarly, I am not aware of any case in which the Supreme Court has
>> interpreted the authority to issue orders (or regulations) to include the
>> authority to waive statutory requirements without express authorization,
>> but I am aware of cases that suggest the opposite.
>>
>> Given all of this, why would we think that Section 323.12(4)(b) allows
>> the Governor to change the election date if the date is set by statute (as
>> opposed to by an administrative order)? What am I missing?
>>
>> (And this is all without even getting into 323.12(4)(d) which, under
>> conventional canons of construction, would seem to have the implication the
>> Wisconsin Supreme Court majority says. Further, as a general matter, orders
>> cannot trump statutes without express authorization anyway, unless they are
>> plausibly within the executive's inherent authority, and I see no claim of
>> that here. )
>>
>> Thanks.
>>
>> JHA
>>
>>
>>
>>
>>
>> ----
>> Jonathan H. Adler
>> Johan Verheij Memorial Professor of Law
>> Director, Coleman P. Burke Center for Environmental Law
>> Case Western Reserve University School of Law
>> 11075 East Boulevard
>> Cleveland, OH 44106
>> ph) 216-368-2535
>> fax) 216-368-2086
>> cell) 202-255-3012
>> jha5 at case.edu
>> SSRN: http://ssrn.com/author=183995
>> Blog: http://reason.com/people/jonathan-adler/blogs
>> <http://www.washingtonpost.com/news/volokh-conspiracy/wp/author/adlerj/>
>> Web: http://www.jhadler.net
>>
>>
>>
>>
>> On Tue, Apr 7, 2020 at 12:29 AM Marty Lederman <
>> Martin.Lederman at law.georgetown.edu> wrote:
>>
>>> 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
>>>>>
>>>>>
>>>>> _______________________________________________
>>>>> Law-election mailing list
>>>>> Law-election at department-lists.uci.edu
>>>>> https://department-lists.uci.edu/mailman/listinfo/law-election
>>>>
>>>>
>>>>
>>>> --
>>>> 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
>>>
>>> _______________________________________________
>>> Law-election mailing list
>>> Law-election at department-lists.uci.edu
>>> https://department-lists.uci.edu/mailman/listinfo/law-election
>>
>>
>
> --
> Marty Lederman
> Georgetown University Law Center
> 600 New Jersey Avenue, NW
> Washington, DC 20001
> 202-662-9937
>
>
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