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

[Pamela S Karlan]

Add to Jim's mix some complexities that come from federal law.  Foster v. Love, 522 U.S. 67 (1997) tells us, I think, that a state cannot end its election period for Senators and Representatives prior to the first Tuesday after the first Monday in November.  2 U.S.C. 1, 7.  But it can pretty clearly begin that election period any time it wants--e.g., allow early in-person or absentee voting--because Congress has not used its Art. I, sec. 4 "Time, Place, and Manner" power to restrict that.

But now consider the presidential election. 3 U.S.C. 1 requires that "[t]he electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November," but 3 U.S.C. 2 then provides that "[w]henever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct."  So what does this latter provision mean for elections whose results are not announced on election day?  I haven't done a 50-state survey to see what provisions are in place for what are likely to be, in most states, protracted election counts this time around.  Clearly, there must be something in place because huge numbers of states have been announcing or certifying election results for decades on dates after the first Tuesday.  And the Electoral Count Act sets the date for the electors to vote as the second Wednesday in December, 3 U.S.C. 7, and the safe harbor provision (3 U.S.C. 5) supposes that there will be controversies in some states about electoral results that will go until at least the first Thursday in December.

But does 3 U.S.C. 2 create a McPherson v. Blacker/Bush v. Gore problem if governors or state courts try to fix virus-caused difficulties regarding deciding the results of the presidential election and appointing electors without clear legislative authorization?

Sigh.


Pamela S. Karlan

Kenneth and Harle Montgomery Professor of Public Interest Law

Co-Director, Supreme Court Litigation Clinic

Stanford Law School

karlan at stanford.edu

650-725-4851

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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 9:29 AM
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



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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

------------------------------------------------------------------------



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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 jeffhauser at gmail.com<mailto:jeffhauser at gmail.com> <jeffhauser at gmail.com<mailto:jeffhauser at gmail.com>>
Sent: Tuesday, April 7, 2020 11:09 AM
To: Pildes, Rick <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto: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<mailto: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://balkin.blogspot.com/2020/04/where-supreme-court-went-wrong-in.html> 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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