[EL] response to Marty Lederman post on the Supreme Court's decision about Wisconsin's elections today

Tue Apr 7 10:00:39 PDT 2020

I'm not sure all states (that is, all but W. Va.) require a postmark on or
before election day. I don't think the Wisconsin law actually requires such
a postmark, if the ballot is received on or before election day, which
shows, as a postmark would, that the ballot was mailed on or before
election day.

West Virginia allows a ballot that lacks a postmark but is received by mail
the day after election day to be counted. It is  nearly certain that such a
ballot must have been mailed on or before election day.

[image: Pepperdine wordmark]*Caruso School of Law*

*Mark S. Scarberry*

*Professor of Lawmark.scarberry at pepperdine.edu
<mark.scarberry at pepperdine.edu>*

On Tue, Apr 7, 2020 at 9:55 AM Pildes, Rick <rick.pildes at nyu.edu> wrote:

> I have trouble seeing how this point complicates the analysis.  There is a
> deadline to be eligible to vote in person:  you must be in line before
> polls close.  If you are, you can cast a vote, even if it is cast after the
> polls are legally closed.  In the same way, you have a right to cast an
> absentee ballot as long as it is postmarked before the polls are legally
> closed.  If you do, in many states, you have a right to have that vote
> counted, even if it does not arrive until after the polls are legally
> closed.
>
>
>
> Surely no state would have a policy that says absentee ballots are valid
> if postmarked up until the last person who was in line at poll closing
> actually managed to cast their vote.  Regardless of whether states permit
> people in line to vote after polls formally close, all states require
> absentee ballots to be postmarked no later than election day.
>
>
>
>
>
>
>
>
>
> >
> *Cc:* Election Law Listserv <law-election at uci.edu>
> *Subject:* Re: [EL] response to Marty Lederman post on the Supreme
> Court's decision about Wisconsin's elections today
>
>
>
> And also to that point, what of laws that allow voters who are in line by
> the close of polls to still cast a ballot? In some states that has meant
> voters have cast their ballots on the next day because the lines were so
> long. Results are being released while people are in line. So we don't
> really have an official uniform closing of the polls after which people
> cannot vote, so long as they were in line by the closing time. That seems
> to complicate the analysis.
>
>
>
>
>
>
>
> Joshua A. Douglas
>
> Thomas P. Lewis Professor of Law
>
> University of Kentucky J. David Rosenberg College of Law
>
> 620 S. Limestone
>
> Lexington, KY 40506
>
> 859-257-4935
>
> joshuadouglas at uky.edu
>
> Twitter: *@JoshuaADouglas
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>
>
> *   Find me at www.JoshuaADouglas.com
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>
>
>
>
> ------------------------------
>
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> on
> behalf of Gardner, James <jgard at buffalo.edu>
> *Sent:* Tuesday, April 7, 2020 12:29 PM
> *To:* Barry Burden <bcburden at wisc.edu>; jeffhauser at gmail.com <
> jeffhauser at gmail.com>; Pildes, Rick <rick.pildes at nyu.edu>
> *Cc:* Election Law Listserv <law-election at uci.edu>
> *Subject:* Re: [EL] response to Marty Lederman post on the Supreme
> Court's decision about Wisconsin's elections today
>
>
>
> Further to Jeff’s last point, I wonder if the advent of universal voting
> by mail and early voting hasn’t simply undermined the concept of an
> election “day.”  Seems we now have an election “period,” the boundaries of
> which may seem quite fluid and uncertain in the public mind.  Obviously,
> there needs to be close even to a prolonged election period, but I’m not so
> sure that it is obvious that the relevant date needs to correspond to the
> moment when in-person polling ceases.  A lot might depend on the state’s
> practice of reporting results.  If we want people to vote without knowing
> how others have voted, and the state were to start reporting partial
> results immediate after the in-person polls close, then casting as vote
> after the polls close must be prohibited.  But if the state doesn’t report
> partial results, maybe it doesn’t matter?  Just thinking out loud here.
>
>
>
> Jim
>
>
>
> ___________________________
>
> James A. Gardner
>
> Bridget and Thomas Black SUNY Distinguished Professor of Law
>
> Research Professor of Political Science
>
> University at Buffalo School of Law
>
> The State University of New York
>
> Room 514, O'Brian Hall
>
> Buffalo, NY 14260-1100
>
> voice: 716-645-3607
>
> fax: 716-645-2064
>
> e-mail: jgard at buffalo.edu
>
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> Papers at http://ssrn.com/author=40126
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>
>
>
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
> Behalf Of *Barry Burden
> *Sent:* Tuesday, April 07, 2020 12:23 PM
> *To:* jeffhauser at gmail.com; Pildes, Rick <rick.pildes at nyu.edu>
> *Cc:* Election Law Listserv <law-election at uci.edu>
> *Subject:* Re: [EL] response to Marty Lederman post on the Supreme
> Court's decision about Wisconsin's elections today
>
>
>
> A question raised by Rick P's analysis is what it means to "cast" a vote.
> Imagine a voter who marks an absentee ballot at home on Wednesday, drops in
> the mail on Thursday, gets a postmark on Thursday or Friday, and has it
> received by the election office the following Monday. A postmark date may
> be a reasonable standard for defining voting deadlines, but do we all agree
> that the postmark date determines when a vote is "cast?"
>
>
>
> ------------------------------------------------------------------------
>
> Barry C. Burden
>
> Professor, Department of Political Science
>
> Director, Elections Research Center (elections.wisc.edu)
>
> University of Wisconsin-Madison
>
> Twitter: @bcburden
>
> Web: faculty.polisci.wisc.edu/bcburden
>
> ------------------------------------------------------------------------
>
>
> ------------------------------
>
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> on
> behalf of jeffhauser at gmail.com <jeffhauser at gmail.com>
> *Sent:* Tuesday, April 7, 2020 11:09 AM
> *To:* Pildes, Rick <rick.pildes at nyu.edu>
> *Cc:* Election Law Listserv <law-election at uci.edu>
> *Subject:* Re: [EL] response to Marty Lederman post on the Supreme
> Court's decision about Wisconsin's elections today
>
>
>
> "Whether or not Wisconsin should be holding an election at all today can
> certainly be disputed.  But that’s not the issue that was before the
> Supreme Court, as everyone recognizes.  "
>
>
>
> I suspect a less rushed process would have allowed for amici to make the
> exact argument Rick is suggesting no one advocates. Moreover, I suspect
> given time amici (and maybe a party) would have been able to connect those
> arguments to equitable powers of the judicial system.
>
>
>
> Recall how arguments in Bush v. Gore changed as that litigation
> progressed, including the late arising equal protection claim that was
> ostensibly decisive.
>
>
>
> On Tue, Apr 7, 2020 at 12:01 PM Pildes, Rick <rick.pildes at nyu.edu> wrote:
>
> In response to the Supreme Court’s decision about today’s Wisconsin
> primary, Marty Lederman posted a piece on the Balkinization blog.  Since I
> find that piece problematic, I have now posted a response on the Election
> Law blog.  I’ll reproduce that post here for the listserv, given how
> quickly commentary moves on such matters:
>
>
>
> *The Supreme Court’s Wisconsin Decision and the General Rule that Absentee
> Ballots Must be Cast (Postmarked) On or Before Election Day*
>
>             Marty Lederman has presented
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__nam04.safelinks.protection.outlook.com_-3Furl-3Dhttps-253A-252F-252Fbalkin.blogspot.com-252F2020-252F04-252Fwhere-2Dsupreme-2Dcourt-2Dwent-2Dwrong-2Din.html-26data-3D02-257C01-257Cjoshuadouglas-2540uky.edu-257C8b26a58b8392434c2d9808d7db10f0f8-257C2b30530b69b64457b818481cb53d42ae-257C0-257C1-257C637218738121815190-26sdata-3DXNjD-252Ba-252BmenbP2-252B6YMuagSL9ytLM0MzjPGr0bAhScmOg-253D-26reserved-3D0&d=DwMF-g&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=vihTnbTSe9ROd1rgwF9QIme5cCLik_9vaH8eEnOWPoI&s=FyfGfUv_CwUEqxi3MuBChcb8DrO8HR36oYobpZfN6Fk&e=>
> a criticism of the Supreme Court’s decision in the Wisconsin election
> litigation, but, with admirable humility (he puts “I think” in the title of
> his post), he concedes that he may be overlooking something in arriving at
> his position. I do think that he does, in fact, overlook something fairly
> fundamental, and I want to correct that misunderstanding.  Put simply,
> Marty fails to recognize that the universal rule throughout the United
> States is that absentee ballots must be cast (postmarked) on or before
> Election Day, though they remain valid in many states even if *received *much
> later than that.   Once this misunderstanding is clarified, it permits a
> more direct focus on the stronger and more plausible arguments critics will
> have for challenging the Court’s decision.
>
>
>
>             Whether or not Wisconsin should be holding an election at all
> today can certainly be disputed.  But that’s not the issue that was before
> the Supreme Court, as everyone recognizes.  Instead, the federal district
> court, recognizing that it could not change the date of the election,
> ordered two principal measures:  (1) that the state treat as valid all
> absentee ballots received by April 13th; (2) that absentee ballot
> postmarked *after * Election Day -- and thus cast after Election Day --
> be treated as valid votes as long as they too were received by April 13th.
> The Supreme Court held that the district court lacked the power to order
> this second measure.  That is, the Court held that the district court was
> wrong to conclude the Constitution required Wisconsin to accept as valid
> absentee votes that were cast after Election Day.
>
>
>
> In other words, the Court concluded that absentee ballots still had to be
> cast (postmarked) on or before Election Day, but permitted them to be
> treated as valid votes if they were received nearly a week after.   The
> Court held that “state law would necessarily require” that absentee ballots
> be postmarked on or before Election Day.  Marty’s critique is that in so
> holding, the Supreme Court “added such a restriction to the franchise that
> Wisconsin's own state law does not impose.”  Indeed, Marty thinks it
> follows that, once the Court accepted that Wisconsin could be ordered to
> accept ballots *received *up until April 13th, it should also have
> accepted that ballots *postmarked *up until April 13th would be treated
> as validly cast.  Because WI law does not expressly state that absentee
> ballots must be postmarked on or before Election Day, Marty continues, the
> district court did not “change” WI law by ordering that absentee ballots
> must be treated as valid if cast all the way up to April 13th.
>
>
>
> Here is the problem with Marty’s argument:  the policy of every State in
> the country is that absentee ballots must be postmarked – ie, cast – on or
> before Election Day.  There are many states that allow absentee ballots to
> be *received *after Election Day and still be treated as valid.  But even
> those States still require that these ballots be postmarked on or before
> Election Day.   Illinois, for example, treats absentee ballots as valid if
> received up to 14 days after Election Day, the longest period in the
> country; Alaska, Maryland, and Ohio are the next longest at around 10
> days.  But every one of these states nonetheless requires these ballots to
> be postmarked (cast) no later than when polls close on Election Day.  The
> same is true in every state.  No state treats absentee ballots as valid if
> they are postmarked after Election Day.
>
>
>
> The reason this is such a basic principle of election laws is
> straightforward:  you cannot vote after the polls have legally closed on
> Election Day.  An absentee ballot postmarked after Election Day is cast
> after the election is over.  And no state treats that as a valid vote.  It
> is true that Wisconsin law does not explicitly say that absentee ballots
> must be postmarked on or before Election Day, but Wisconsin law had no need
> to state that:  the law in Wisconsin had been that these ballots must be *received
> *by 8 pm on Election Day – and thus, by definition, they had to be
> postmarked on or before that day.
>
>
>
> The Supreme Court was thus not pulling a principle out of thin air, as
> Marty implies, when it concluded that even if Wisconsin law was to be
> changed to permit *receipt *up until April 13th, state law would still
> require those ballots to be postmarked on or before today.  As noted, that
> is both the policy throughout the United States and it reflects the
> fundamental, universal principle that ballots cast after Election Day are
> not valid votes.  The only reasonable inference is that Wisconsin, like all
> states, would require postmark by Election Day even if receipt were valid
> up to 6 days later.  Indeed, while the district court started out by
> recognizing it had no power to change the date of today’s election, it
> essentially turned around and did that by permitting absentee votes to be
> cast until April 13th.  Once the district court did that, there was a
> certain logic to its further order that election officials could not
> release the vote count until April 13th, since that had effectively
> become the date the election was over.
>
>
>
> But to say that Marty’s *particular *criticism of the Court is mistaken
> on this point is not to say that the Court’s decision was correct.  As I
> noted at the start, there are other, more direct and more plausible grounds
> for taking issue with the Court’s decision.
>
>
>
> The most direct argument is the straightforward one that, in the emergency
> situation we face, the federal courts have the power to protect the
> constitutional right to vote by fundamentally altering aspects of the way
> elections are conducted, including through measures such as treating as
> valid votes absentee ballots postmarked almost a week after Election Day.
> That is, under the unique circumstances we face – when many absentee ballot
> requests might not be fulfilled in time for voters to cast those ballots
> before polls close – the constitutional right to vote should give courts
> the power to extend the time for voting for up to 6 days after Election
> Day.  That’s what’s actually at stake in the Court’s decision and the
> fundamental issue that divides the majority and dissent.  In other words,
> even if it’s correct that Wisconsin would surely require absentee ballots
> to be postmarked before polls close today, the Constitution should be
> understood to override that rule in the current circumstances.  This post
> has gone on too long to engage with that issue, but once we clear up the
> confusion about how election laws normally work, we can focus on the real
> issue -- whether and to what extent the Constitution should be understood
> to require that these normal rules be suspended, given our current
> circumstances.
>
>
>
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