Where the Supreme Court went wrong in today's Wisconsin election decision (I think)

Marty Lederman

If I'm not mistaken, the Supreme Court just stayed a provision of a district court preliminary injunction that does not exist, and in so doing imposed a restraint on the franchise of Wisconsin voters that Wisconsin law itself doesn't require.

At least that's how I read the Court's decision, together with the underlying Wisconsin law.  [I am, of course, far from being an expert on Wisconsin voting procedures.  If others more learned than I bring additional considerations or contrary authorities to my attention, I'll be happy to revise my mistakes or retract the criticism below.]

If I'm right, how did it come to this?  Let's recount the harried developments concerning the Wisconsin primary of the past few days.

1.  The Wisconsin Election.   Wisconsin law establishes tomorrow as an election day.  In this particular election, the voters will decide a broad array of important matters, including the allocation of presidential electors for both major national political parties; a State-wide referendum on a proposed amendment to the Wisconsin Constitution; 132 county, school district, and local referenda; who will hold three judgeships on the Wisconsin Court of Appeals; 34 judgeships in county circuit courts; 102 seats on municipal courts; 1,596 county supervisor and officer positions; 763 alders, mayors, and other city offices; 464 village board trustees, board members, and other offices; 291 town supervisors, clerks, and other offices; 565 seats on the boards of common, union, and unified school districts; twelve seats as supervisors on the boards of sanitary districts;  . . . and, perhaps most importantly, a hotly contested seat on the Wisconsin Supreme Court.

How important is that state supreme court election?  Well, the other six Justices on the Court reportedly are deadlocked 3-3 on a voting rights case that could result in removing hundreds of thousands of people from Wisconsin's voter rolls ahead of November's election.  For that and other reasons, the stakes for deciding who will fill the seventh seat are significant.

2.  The Governor's Order Delaying Election Day.  And yet, unlike virtually every other state in the nation that had a scheduled primary election in these harrowing weeks, Wisconsin has decided to go forward with its primary election tomorrow, in the midst of a public health crisis so severe that the Governor has ordered Wisconsinites to stay at home until April 24 to slow the spread of the disease.

Actually, it'd be more accurate to say that the Republican-controlled Wisconsin legislature and state supreme court--which collectively have the decisive power in Wisconsin these days--have decided to hold the election tomorrow.  Governor Tony Evers, by contrast, issued an order this morning suspending in-person voting until June 9 unless the Legislature passes and the Governor approves a different date.

Where did Gov. Evers purport to get the authority to change the statutorily imposed election day?  He invoked Section 323.12(4)(b) of the Wisconsin Code, which provides that "during a state of emergency declared under section 323.10," the Governor may "[i]ssue such orders as he or she deems necessary for the security of persons and property."  (Evers declared such a public health emergency back on March 12.)*  That does, indeed, seem to be a shockingly broad delegation by the legislature of gubernatorial emergency authority.  I have no expertise in the Wisconsin law of emergency powers, but the provision's plain language would appear to afford the Governor authority to postpone an election in a rare situation--such as we have today--where that's "necessary for the security of persons and property."

And obviously, such a delay is necessary, because voters and poll workers would face serious risks of exposure to COVID-19 at the polls--which would, in turn, increase the spread of the virus in Wisconsin and beyond.  Not surprisingly, then, there's a shortfall of thousands of available poll workers, which in turn requires municipalities around the state to consolidate polling places (the City of Milwaukee, for example, has consolidated 182 polling locations into five), which in turn will (per the Governor's Order) "necessarily mean larger crowds and greater exposure for those poll workers administering each polling place, as well as for those Wisconsinites who visit those polling places to cast in-person ballots."

Under these circumstances it's been grossly irresponsible, to say the least, and an outrageous violation of their civic duties, for Republican State legislators to refuse to move the date--which is why Governor Evers ordered the delay unilaterally, a move that he reasonably determined was "necessary for the security of persons and property."

3.  The Wisconsin Supreme Court Orders an Election to be Held Tomorrow.   This afternoon, however, the Wisconsin Supreme Court voted 4-2 (along party lines) to enjoin enforcement of the Governor's order, which means that the Wisconsin election will occur tomorrow--notwithstanding the likelihood that many who vote or work at the polls will be exposed to COVID-19.  [UPDATE:  Late this evening the court published its rationale for why Section 323.12(4)(b) does not give Governor Evers the broad emergency authority he tried to exercise today:  The majority pointed to a cognate provision, paragraph (4)(d), which expressly empowers the Governor to “[s]uspend the provisions of any administrative rule” if certain conditions are met.  "Since the Legislature provided the Governor the authority to suspend administrative rules in paragraph (4)(d)," write the majority, "the logical inference with respect to paragraph (4)(b) is that the Legislature has not granted him the authority to suspend or rewrite statutes in the name of public safety.  To conclude otherwise would be to render the administrative rules provision in paragraph (4)(d) pure surplusage."  In her dissent, Justice Bradley accuses the majority of "ignor[ing] the plain language" of Section 323.12(4)(b).]

I don't have a considered view about which side of the Wisconsin Supreme Court has the better of the argument regarding the delegated authority under Section 323.12(4)(b).  What's important for present purposes is that, by virtue of the Court's opinion, the Wisconsin election will proceed tomorrow, albeit at many fewer locations than usual.

4.  The Federal Court Challenge Concerning Absentee Ballot Deadlines.  Because gathering at Wisconsin polling places now poses dire health risks, an unprecedented number of Wisconsin voters, at the encouragement of public officials, have decided to vote absentee.  A million or so more voters have requested absentee ballots in this election than in 2016, which has inevitably resulted in a severe backlog of ballots that voters have requested but that state officials have not yet delivered.

Because COVID-19 would prevent many voters from going to the polling place, and because not having an absentee ballot in hand would prevent those voters from getting such ballots to election officials by tomorrow, various voters and groups sued Wisconsin officials, arguing that these restrictions unduly restrict their constitutional right to vote.

The district court concluded that Wisconsin's existing deadlines for absentee voting would unconstitutionally burden citizens’ right to vote under Burdick v. Takushi (1992) and Anderson v. Celebrezze (1983).  To alleviate that burden, last Friday the court entered a preliminary injunction that did two primary things:  (i) It extended by one day the deadline for voters to request absentee ballots, from last Thursday to last Friday; and (ii) It enjoined state election officials from enforcing the Wisconsin statutory requirement (see Wis. Stat. § 6.87(6)) that an absentee ballot "shall be returned so it is delivered to the polling place no later than 8 p.m. on election day."  "The deadline for receipt of absentee ballots," reads the court's injunction, "is extended to 4:00 p.m. on April 13, 2020," i.e., next Monday.  (The court also enjoined state officials from "releasing any unofficial results until April 13, 2020, at 4:00 p.m. or as soon thereafter as votes can be tabulated," so that voters sending in their absentee ballots after tomorrow would not know of any partial tallies when they made their selections.)

5.  The Supreme Court decision.   Although the defendant state election officials didn't appeal the preliminary injunction, the Republican National Committee, which had intervened below, asked the U.S. Court of Appeals for the Seventh Circuit for a partial stay.  The court of appeals declined to stay the central aspects of the injunction, and the RNC then applied to the Supreme Court for a partial stay of the injunction.  Notably, however, the RNC did not ask the Court to stay the provision of the injunction that extends the deadline for receipt of absentee ballots until next Monday.

A few hours ago, in a per curiam 5-4 decision, the Supreme Court stayed the P.I. "to the extent it requires the State to count absentee ballots postmarked after April 7, 2020."  The upshot of that decision, as Justice Ginsburg describes it in her dissenting opinion, is that whereas "[u]nder the District Court’s order, an absentee voter who receives a ballot after tomorrow could still have voted, as long as she delivered it to election officials by April 13," the Court’s order means that "tens of thousands of absentee voters, unlikely to receive their ballots in time to cast them, will be left quite literally without a vote."

As best I can tell, there is something deeply discordant about the majority opinion.  (I should note that what follows is based primarily on the Court's opinions and on the briefs filed in the Supreme Court.  It's possible there might be something else in Wisconsin law that I've overlooked--but if I have, so did the parties)

The per curiam opinion sets up what it calls "the sole question" on the stay application in 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.  (Emphasis added.)

As this passage suggests, the majority essentially acted as though (i) Wisconsin law requires absentee ballots to be mailed and postmarked no later than April 7; (ii) the district court held that that mailing deadline was unconstitutional; and (iii) the court's preliminary injunction extended that mailing deadline to next Monday.  Indeed, the upshot of the Court's holding is that the district court erred in enjoining the so-called April 7 mailing deadline that Wisconsin "state law" has prescribed.

But here's the rub:  If my preliminary reading is correct, there is no such mailing deadline in state law--which explains why the district court's injunction does not by terms postpone any "mailing" or "postmarking" deadline.

What state statutory law requires is simply that state officials receive absentee ballots by the 7th; ballots received thereafter may not be counted.  The parties agree, however (or didn't disagree in the Court, anyway), that the district court properly extended that "receipt" deadline--the only one in Wisconsin law--to the 13th.

Once the receipt deadline is properly set as the 13th (as it has been here), what is there in Wisconsin law that would prohibit someone from mailing a valid (i.e., countable) ballot between the 7th and the 13th, or from delivering such a ballot to an election official on or before the 13th?

Nothing, as far as I know.

The Court's per curiam opinion proceeds as if there's a background state law rule requiring voters to mail and postmark such ballots by the 7th ("as state law would necessarily require")--but there's not.  (The Court writes that it is "a critical point in the case" that "in their preliminary injunction motions, the plaintiffs did not ask that the District Court allow ballots mailed and postmarked after election
day, April 7, to be counted."  Well, perhaps the plaintiffs didn't include such a request for relief in their papers because there was nothing in Wisconsin law that prohibited the counting of such ballots, and therefore there was no need for the District Court to issue an order "allow[ing]" it.)

To be sure, as a practical matter, i.e., as a matter of the basic physics of time and space, Wisconsin law would have rendered it impossible to have an absentee ballot counted if a voter had mailed it after April 7--because of course, absent the use of a time-travel machine,.such a ballot could not possibly be received by election officials before that date,

Now, however, Judge Conley has simply put off the receipt deadline to the 13th.  Having done so, there was no additional post-mark deadline for him to consider.  As he wrote in his opinion, he would not add a postmarked-by date requirement because he was "simply moving the statutory absentee receipt deadline."  Justice Ginsburg was likewise right when she wrote this:  "Recall that absentee ballots were originally due back to election officials on April 7, which the District Court extended to April 13.  Neither of those deadlines carried a postmark-by requirement."  Nor is there any other law, far as I know, that prohibits mailing the ballots between those two dates.

No other law, that is, except the Supreme Court's per curiam opinion itself:  If my reading is correct, 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.  The Court itself, in other words, has added such a restriction to the franchise that Wisconsin's own state law does not impose.**

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* Section 323.10 provides in pertinent part:  "If the governor determines that a public health emergency exists, he or she may issue an executive order declaring a state of emergency related to public health for the state or any portion of the state and may designate the department of health services as the lead state agency to respond to that emergency. . . .  A state of emergency shall not exceed 60 days, unless the state of emergency is extended by joint resolution of the legislature.  A copy of the executive order shall be filed with the secretary of state.  The executive order may be revoked at the discretion of either the governor by executive order or the legislature by joint resolution."

** The Supreme Court majority was understandably worried that if the deadline for receipt of absentee ballots is extended to the 13th and yet voters can send such ballots between the 7th and the 13th, such voters might make their selections with knowledge of what the polling place tallies were on the 7th--something that Wisconsin, or any state, obviously would wish to avoid. Judge Conley was worried about that too, however, which is why he wisely enjoined state officials from disclosing any partial tallies until April 13, 2020.  If state court officials abide by that part of the injunction--and there's no reason to think they wouldn't--then voters sending in their absentee ballots after tomorrow would not have been able to game the system based upon knowledge of how other citizens had already voted.
Posted 12:09 AM by Marty Lederman [link]