Wednesday Writs: Pennsylvania, Wisconsin, SCOTUS, and Election Law

Justices Kavanaugh, Gorsuch, and Kagan attend as President Donald J. Trump presents the Medal of Free. Friday, Nov. 16, 2018, in the East Room of the White House. (Cropped from Official White House Photo by Andrea Hanks) November 2018

L1: The upcoming election in the midst of an ever-present pandemic, a hyper partisan atmosphere, and a controversial new SCOTUS appointment have come to a head in the form of a couple of high court rulings. Each concerns an attempt by Democrats of a state to extend the time in which absentee ballots are deemed countable. In one case, the extension was allowed to remain; in the other, it was stricken. Why the facially inconsistent result?

Because as with most things in the law, it’s complicated. We have two cases of the week today: Pennsylvania Democratic Party v. Boockvar and Democratic National Committee, et al v. Wisconsin State Legislature.

The first of the two recent SCOTUS orders came out last week and involved Pennsylvania. That case began with a lawsuit by Pennsylvania’s Democratic Party challenging the Commonwealth’s absentee voting system. The Pennsylvania Supreme Court issued an order requiring ballots received up to three days after election day to be counted, as long as they are not clearly postmarked after November 3rd. This means that an illegible postmark would be presumed timely. Pennsylvania Republicans asked the Supreme Court for a stay of the Order, pending their petition for cert. On October 19, the stay was denied 4-4, with Roberts joining Breyer, Kagan, and Sotomayor to deny and the other 4 dissenting. Neither side issued any written reason for their opinion.

The second case, from Wisconsin, dates back to before the spring primary election when Democrats sought accommodations to make it easier for people to vote while staying safe from COVID-19. Republicans asked the Court to block a District Court order extending the date by which absentee ballots had to be received in order to be counted. The order granting the Republicans’ petition, to which the late Justice Ginsburg, Sotomayor, Breyer, and Kagan dissented, was issued the evening before the primary. The fight continued after the primary, as Democrats fought for similar accommodations for the general election. In September, an order by US District Judge William Conley allowed that ballots postmarked by election day would be counted as long as they were received up to 6 days after the election. This was a departure from Wisconsin state law, which required absentee ballots to be received by election day. The relevant Wisconsin statute reads as follows:

“The ballot shall be returned so it is delivered to the polling place no later than 8 p.m. on election day. Except in municipalities where absentee ballots are canvassed under s. 7.52, if the municipal clerk receives an absentee ballot on election day, the clerk shall secure the ballot and cause the ballot to be delivered to the polling place serving the elector’s residence before 8 p.m. Any ballot not mailed or delivered as provided in this subsection may not be counted.”

Wis. Stat. § 6.87 (emphasis added)

Wisconsin Republicans appealed to the 7th Circuit Court of Appeals, which ruled in their favor and issued a stay, causing the Democrats to seek the intervention of the Supreme Court. It was this appeal by the Democrats that SCOTUS denied this week. The Order was another 4-4 split, with Roberts joining Kavanaugh, Alito, Thomas, and Gorsuch this time. He wrote separately to explain why he decided the Wisconsin case differently. The thrust of his rationale is summed up simply in the single paragraph of his concurrence: “While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes.” In other words, it was ok for the state high court to interpret and alter state law, but not ok for a federal court to do so.

Gorsuch also wrote a concurrence, joined by Kavanaugh. Gorsuch agrees with Roberts insofar as he opines that only state legislatures have the right to tinker with a state’s election rules- not its judges, and certainly not federal judges- though Congress could revise if necessary. This sheds light on his vote in Pennsylvania, and why it is consistent with Wisconsin.

Even barring that, Gorsuch felt the state had done more than enough to accommodate voters during the pandemic:

Because of the current pandemic, the court suggested, it was free to substitute its own election deadline for the State’s. Never mind that, in response to the pandemic, the Wisconsin Elections Commission decided to mail registered voters an absentee ballot application and return envelope over the summer, so no one had to ask for one. Never mind that voters have also been free to seek and return absentee ballots since September. Never mind that voters may return their ballots not only by mail but also by bringing them to a county clerk’s office, or various “no touch” drop boxes staged locally, or certain polling places on election day. Never mind that those unable to vote on election day have still other options in Wisconsin, like voting in-person during a 2-week voting period before election day.

Kavanaugh also wrote separately, delineating three reasons for his opinion. The first is rather arbitrary: the changes were coming in too close to election day. He cites precedent for this view, but any rationale that is open to such subjective interpretation is dubious, in my opinion. How close is too close? Is there such thing as too far in advance? For example, had this case been decided six months ago, would there have been an argument that it was much too early to know whether such changes would still be necessary at this point?

Secondly, Kavanaugh argues that state and local authorities, not federal judges, are those in the position to know “how best to balance the costs and benefits of potential policy responses to the pandemic, including with respect to elections”, not unelected members of the federal judiciary.

It follows “that a State legislature’s decision either to keep or to make changes to election rules to address COVID–19 ordinarily ‘should not be subject to second guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.’” -(quoting himself in Andino v. Middleton.)

This assumes, I suppose, that state legislatures are experts in public health?

Finally, Kavanaugh writes that the 7th Circuit did not give enough weight to the importance of election deadlines. The requirement that ballots be received, not merely postmarked, by election day is important, Kavanaugh says, because an influx of late ballots could “flip the results of an election.” Some might argue that until all votes are counted, there is no result to flip. Beyond that, however, Kavanaugh argues that it is important for states to count and reach a result quickly so that they can get on to the business of resolving disputes and ordering recounts. Furthermore, he says, late-arriving ballots, for some reason, give rise to suspicion of impropriety, though it is unclear how a slow-running postal service is suspicious. Kavanaugh repeatedly says that “elections must have deadlines”; true enough, but the proposed rule change still includes a deadline. He acknowledges that the intention is to accommodate the larger-than-normal number of absentee voters due to the pandemic, but fails to see how a six day extension would accomplish this. Like Gorsuch, he details the many accommodations already made to ensure a voter’s ballot is counted, finding no real danger of disenfranchisement without the extension. (Kavanaugh also cited in a footnote his agreement with Rehnquist’s dissent in Bush v. Gore, which would warrant a whole other article.)

Kagan wrote a dissent, joined by Sotomayor and Breyer. She began with a description of the state of COVID in Wisconsin. She notes that the pandemic is much worse there now than it was in the spring, with over 3000 new cases per day as opposed to 175 in April. This, along with unusual postal delays recognized by the lower court, was the impetus for the decision to extend the deadline. The turnaround time for a mail-in ballot, assuming the voter fills it out and puts it immediately back in the mail, is up to 14 days. Given that October 29 is the last day to request an absentee ballot, it is likely that many will not be returned by election day, and that some may not even be received by the voter by then.

Kagan cites the Court’s prior decision in 2006’s Gonzalez v. Purcell. In Purcell, the District Court refused to enjoin a voter ID law shortly before election day. The appellate court reversed, and the Supreme Court vacated the appellate court because it did not properly defer to the District Court’s discretion to decide the propriety of injunctive relief. The Court then held that a District Court must weigh the harm to allow or not allow an injunction against the “integrity of the election process”. One factor for consideration is the possibility of voter confusion and resultant “incentive” not to vote. Logically, an extension of the deadline would not tend to make a voter reluctant or confused about voting.

Nor would that measure discourage Wisconsin citizens from exercising their right to the franchise. To the contrary, it would prevent the State from throwing away the votes of people actively participating in the democratic process. And what will undermine the “integrity” of that process is not the counting but instead the discarding of timely cast ballots
that, because of pandemic conditions, arrive a bit after Election Day. On the scales of both
constitutional justice and electoral accuracy, protecting the right to vote in a health crisis outweighs conforming to a deadline created in safer days.

She also notes with skepticism Kavanaugh’s concern about the suspiciousness of late arriving votes, and argues that refusal to count votes has a greater likelihood of sparking allegations of impropriety, and agrees with me that a premature change in the rules could have also been untimely.

Kagan is not persuaded by the argument that courts should not interfere with the purview of the state legislature, believing it necessary when state laws or rules have the affect of disenfranchisement: “…if there is one area where deference to legislators should not shade into acquiescence, it is election law. For in that field politicians’ incentives often conflict with voters’ interests—that is, whenever suppressing votes benefits the lawmakers who make the rules.” She concedes that states are better positioned to understand their own pandemic landscape, but notes that the Wisconsin legislature has not considered whether the pandemic warrants additional election measures; in fact, they have not met since April.

The dissent dismisses the many other accommodations noted by the concurrences, noting that election offices and the postal service are not equipped to deal with the influx of ballots, and that there is no option to vote in-person if an absentee voter finds on Election Day that their ballot was not received. These are factors recognized in the findings of the District Court but disregarded by the Appellate and Supreme Courts.

In sum, the reasoning of 6 of the 8 judges-Thomas and Alito did not weigh in on their own- shows that the only factor that allowed the PA change to stand while not the WI change is Roberts’ belief that it is ok for a state court’s to tweak state election rules, but not federal courts, while his conservative colleagues prefer that judges stay out altogether.

L2: Now that the Court is back to 9 Justices, Pennsylvania Republicans want their petition reconsidered.

L3: A federal judge has stopped Bill Barr’s attempt to have the US Department of Justice defend Donald Trump in a defamation lawsuit filed against him by E. Jean Carroll, who has accused him of rape. Trump called the allegations a lie, prompting Carroll to file the defamation suit. Barr unsuccessfully argued that the comments were made within the scope of the presidential office.

L4: Tennessee passed a law mandating year-round daylight savings time over a year ago; however, like other states who have tried to do away with the biannual changing o’ the clocks, the federal government says “that’s cute. But no.”

L5: It’s only a dumb idea if you get caught: A New Hampshire woman used the court e-filing fee to impersonate a prosecutor, dropping her own criminal charges and stopping a custody case involving her child.

L6: Presented without comment, Bush v. Dog (H/T @KenDeuel):

Arlington, VA, everybody: pic.twitter.com/PE7Szrv8NB

— Ashley Baker (@andashleysays) October 27, 2020