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

Tue Apr 7 11:28:58 PDT 2020

Two quick points.  And I’ve not had time to read everything written in a flurry on the Wisconsin election, so please forgive me if this point’s been made already by others.

First, to Jim’s post: during the presidential primaries, networks have consistently “called” states for particular candidates at the time given for “closing the polls,” as if the fact of winning were more relevant than the margin of victory in a series of quasi-proportional delegate contests.  But those media reports have also consistently come while voters are still in line to vote, which may well be changing voter behavior in a way that affects the final results – not only for that state, but for the delegate race as a whole.  I recognize that the results of exit polls are different from officially released partial counts.  But votes are currently being cast even as information emerges about how the election results seem to be stacking up.  That is, voting does not currently take place in a sealed information environment, with all voters casting ballots under the veil of ignorance about the status thus far.

Second: one irony – if that’s the right word -- in all of this discussion is that Wisconsin might end up getting a “delayed” election in any event.  Steve Huefner has chronicled in detail<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=946770> the various remedies available for election problems, and though (as he says, for good reason) rerun elections are quite rare, so are global pandemics radically limiting the availability of in-person polling places (and subjecting voters who brave the lines to a not-insubstantial risk of grave personal injury), and tens of thousands of absentee ballots that voters requested on time but did not arrive on time.  If the ostensible margin of victory in some of the elections today is slim compared to the number of absentee ballots not timely delivered and/or radically depressed in-person turnout compared to past years, I would not be surprised to see a call for a rerun election, as a matter of constitutional due process (indeed, that may explain the “provocative footnote” Rick Hasen called out<https://electionlawblog.org/?p=110370> in the federal trial court’s Wisconsin opinion on deadlines).

(As a side note: distinct from the federal constitutional issue, I’d welcome the input of those experienced in Wisconsin state law, which seems to have its own ambiguity.  In 1981, the Wisconsin Supreme Court set aside an election after about 40% of the electorate were excluded from voting, “so undermin[ing] the appearance of fairness in the election that the election must be set aside.”  In 1983, the legislature amended the recount statute – which doesn’t really deal with ballots not cast -- to purport to render Wis. Stat. 9.01 “the exclusive judicial remedy for testing the right to hold an elective office.”  But I don’t know the extent to which the Wisconsin State Constitution would limit that 1983 legislative amendment, in cases of, as the Wisconsin Supreme Court put it, “deprivations of the right to vote [ ] so significant in number or so egregious in character as to seriously undermine the appearance of fairness.”)

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On Apr 7, 2020, at 9:29 AM, Gardner, James <jgard at buffalo.edu<mailto:jgard at buffalo.edu>> wrote:

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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