Don’t like the Wisconsin election mess? Don’t blame the courts.
Opinion
By George T. Conway III and David Lat
6-8 minutes
George T. Conway III is a lawyer and an adviser to the Lincoln Project, an anti-Trump super PAC. David Lat is the founding editor of Above the Law, a website covering the legal profession, and a managing director at Lateral Link, a legal recruiting firm. He recently spent 17 days in the hospital, including six days on a ventilator, with covid-19.
What happened last week in Wisconsin — citizens being forced to risk exposure to a deadly virus in order to vote — was an atrocious fiasco. Wisconsin’s GOP-controlled legislature deserves to be castigated for allowing it to happen.
Just don’t blame the courts.
In Wisconsin, any registered voter can vote by mail, no reason or excuse needed. All voters need to do is apply — by mail, email or fax, or on a state website — by the Thursday before the election, and they’re entitled to an absentee ballot. Ballots must be returned by mail, or in person, by Election Day. The state’s elections website makes clear it’s best for voters to apply for and return ballots early, because mail may take a week to deliver.
This year, thanks to covid-19, election officials received an unprecedented surge in absentee ballot requests. In all, roughly 1.3 million Wisconsin voters requested mail-in ballots — more than five times the nearly 250,000 who did so in April 2016. That surge created backlogs and delays, with some offices running short on envelopes. On Election Day, hundreds of polling places had to be closed because of health concerns, resulting in lengthy lines of mask-wearing voters waiting hours into the night.
Gov. Tony Evers, a Democrat, proposed a sensible solution: He asked the GOP-controlled legislature to pass legislation converting the election into an all-mail vote that would count all ballots received by May 19. The legislature refused. The result was litigation — and widespread condemnation of the results the courts ultimately reached.
One case was in state court. After Republicans refused even to consider his legislative proposal, Evers acted unilaterally: He issued an executive order suspending the election until June 9 and extending elected officials’ terms until votes were tallied.
The order was well-intentioned. It was also utterly lawless. The governor relied on a state statute that grants him authority, in emergencies, to “issue such orders as he or she deems necessary for the security of persons and property.” That’s broad language, to be sure, but it nowhere gives him power to override other valid statutes, including those governing elections. Nor does it let him extend the statutory terms of officeholders. An age-old rule in interpreting statutes is to construe them in harmony, and not to interpret them as undoing each other unless they expressly say so. If that rule applies anywhere, it should be here: If a law were really meant to vest the executive with quasi-dictatorial emergency power to override any and all other laws, you’d expect it to explicitly say so.
The Wisconsin Supreme Court applied the law as it found it, and struck down the governor’s order. Yet for its adherence to the law, the court got lots of grief from commentators.
Even more criticism rained down on the U.S. Supreme Court, which faced an emergency application in a case brought in a federal district court in Wisconsin. That case didn’t involve in-person voting, but rather the deadlines for mail-in ballots. The district court ordered that Wisconsin officials accept all mailed ballots received by April 13, six days after Election Day, even if they were postmarked after Election Day.
The problem, once again, was the order had no legal basis — at the very least, it was an extreme stretch of the law.
Federal law pretty much leaves election procedures to the states. But the Supreme Court has long held, correctly, that a state can’t constitutionally impose “severe” restrictions on the right to vote unless it has a “compelling" reason. The state gets the benefit of the doubt, and if it imposes only “reasonable, nondiscriminatory restrictions” on voting, it prevails.
Here, there was nothing “severe” about imposing an Election Day deadline for receiving absentee ballots. That’s what states ordinarily do, and there’s nothing unreasonable or discriminatory about it — the deadline applies to everyone. In fact, by the morning after the election, Wisconsin election officials reported that they had already received back one million of the nearly 1.3 million absentee ballots they had sent out. Clerks sent ballots to all but 12,710 of those who requested them.
Better yet, the officials made an important concession in the district court: They had agreed to count ballots up to six days after the election, as long as they were postmarked by Election Day — a sensible modification of the regular rule. So valid ballots are still coming in. Given all this, the dispute was actually very narrow. But the bottom line was that precedent didn’t justify ordering that ballots postmarked up to six days later be counted. Which is why the Supreme Court majority acted reasonably in overturning the district court’s ruling.
Neither high court deserved the opprobrium it received for these decisions. If you have any doubt, consider a scenario that contrary rulings might have justified: A governor from a political party opposing yours, perhaps fearing an electoral loss for himself or an ally, such as the president, orders that an election or election deadlines be postponed, and extends his or other officials’ terms accordingly, or sues to do so. He points, perhaps, to a second-wave flare-up of covid-19, but his true motives can’t be proved. For precedent, he would have been able to rely on the two Wisconsin cases — had they gone the other way.
Is that the result you want? If it isn’t, then you should applaud the courts in the Wisconsin cases for upholding the rule of law. And you should put the blame for allowing risky in-person voting squarely where it belongs — on Wisconsin’s legislature.
