Campaigns/Elections

Making Sense of the Wisconsin Election Supreme Court Decision(s)

Marquette University law professor Chad Oldfather offers a helpful explainer laying out the issues in the SCOTUS and SCOWIS decisions on the Wisconsin primary elections.

|The Volokh Conspiracy |

Today thousands of voters in Wisconsin braved long lines and potential exposure to Covid-19 to cast their votes in the state's primary elections. At stake were hundreds of local races and ballot initiatives, the Democratic presidential primary, and a state Supreme Court seat.

Many folks thought the Wisconsin election should have postponed (like happened here in Ohio). Others thought special accommodation should be made to facilitate absentee or at-home voting of some sort. The state legislature refused to act, however, leaving the matter to the Governor and the courts. The state Democratic Party went to federal court to force election administration changes, and the Governor sought to change the election date unilaterally. In the end, both efforts were rejected by the Wisconsin Supreme Court and U.S. Supreme Court, respectively. The former concluded the Governor exceeded his authority under state law, and the latter concluded a federal district court improperly extended the deadline for absentee voting. Both decision divided along ideological lines.

Marquette University law professor Chad Oldfather has the benefit of being on the ground in Wisconsin. He's also written up a handy (and fairly balanced) assessment of the legal issues and opinions that I thought would be of interest to VC readers. With his permission, I reproduce his post below.

Here's a quick summary of the two court opinions that, in combination, allowed today's Wisconsin election to go forward. I'll note at the outset that none of this is even close to perfect – not the courts' analyses, not my analysis. Doing this well takes time, but time was not a luxury that anyone had. I don't think either court has a great showing, but I also think that the real culprits here are the political actors, and the deeply toxic political culture of this state. I welcome the day, which I hope comes, when the first question our elected officials ask is consistently "is this the right thing to do?" rather than "is this the politically expedient thing to do?"

Considered in the abstract, I wouldn't characterize either case as easy. The constitutional and statutory questions involved are of the sort that require balancing a variety of interests, which in turn requires figuring out precisely what those interests are, what their nature and weight is, and how they do or do not balance one another out in the unique circumstances of an election in the midst of a pandemic.

A large part of what seems to drive the analysis in both cases is the willingness to account for those unique circumstances. The majorities on both courts tend toward a business-as-usual approach. The dissents do not, and lean on the extraordinary circumstances in which we find ourselves.

That fact that the lineups in both cases broke down along what most would perceive as partisan lines makes for what to me seems like a very bad look for both courts. They certainly seem to exemplify a phenomenon Justice Jackson cautioned against in his landmark opinion in the Youngstown Steel case: "The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies … and lose sight of enduring consequences upon the balanced power structure of our Republic." That's not how law is supposed to work.

SCOTUS
The basic question could be phrased in a bunch of different ways, but it boils down to whether holding the election as scheduled results in the unconstitutional burdening of the right to vote because of the fact that a large number of the people who made timely requests for absentee ballots will not get them due to backlogs created by the overwhelming number of requests. That, of course, means that they will not be able to return those ballots in a timely manner, meaning that they must either forfeit their right to vote or expose themselves to the risks associated with voting in the midst of a pandemic.

The majority approaches the question as a largely technical one, reasoning, in effect, that there are always deadlines and it's always the case that people who don't comply with those deadlines don't get to vote. It also leans on its caselaw establishing a strong preference that federal courts not engage in late interference into elections, on the grounds that such interference creates confusion and risks the integrity of the process. Here, the lower court's order included the suppression of election results, which if violated could leak to the leakage of information that could affect the behavior of those voting as part of the extended window.

The dissent emphasizes that this is a crisis situation. It's not business-as-usual. Lots of people who requested absentee ballots in a timely manner have not received them, and will not receive them in time to comply with the original timing of the election. That, because the alternative for those voters is to place their health at risk to vote, amounts to an unconstitutional burden on the right to vote.

SCOWIS

The basic question before the Wisconsin court concerns whether Governor Evers had authority to issue his order suspending the election. The governor claimed two bases of authority: the Wisconsin constitution, and the statutory framework relating to emergency powers.

The majority's analysis is (unsurprisingly, given the time constraints) unsophisticated. It dismisses without much consideration the claim that the state constitution provides a source of authority. I'm aware of no existing authority for the proposition that the clause vesting the executive power in the governor might include – as inherent in the notion of executive power – certain authority to act in an emergency, but I am also aware of no authority for the contrary position, and the argument is not an insubstantial one. (I haven't read any of the submissions to the court, so I don't know to what extent the point was developed.) The statutory interpretation is a pretty basic exercise in formalism. The opinion reasons that the governor's order would have the effect of suspending or amending statutes, and that because the statutory grant of authority to the governor expressly mentions some things (such as suspending administrative rules) that are in the nature of but not quite the same as statutes, therefore the general grant of power "to issue such orders as he or she deems necessary for the security of persons or property" must mean something less than statutes. The tools of analysis the court employs are certainly within bounds, but they're not the entire set, and the opinion doesn't test its logic at all. What sorts of orders are covered, then? Doesn't any order in an emergency situation have the effect of changing the existing legal landscape? We don't know. But this opinion is certainly of a piece with the court's recent trend toward assuming a highly deferential posture toward the legislature, a trend about which I have my doubts.

The dissent opens by accusing the majority of being an accomplice to knowing, continued disenfranchisement. And it likewise tells a story of how the basic tools of statutory interpretation apply here, drawing on the court's seminal statutory interpretation case. It points to the broad scope of authority given to the Secretary of the Department of Health in support of the notion that the emergency power possessed by the governor should be broadly construed. (The dissent also does not test its reasoning, and it does not engage with the constitutional claims.) The dissent closes by emphasizing that this is not business as usual, and by reiterating the claim that the majority is engaged in open disenfranchisement.

As for the underlying legal question in the Supreme Court case—the "Purcell Principle"—Derek Muller offers some thoughts at Excess of Democracy. Marty Lederman critiques the two rulings here.  Rick Pildes responds here. Finally, Michael Morley has an extensive twitter thread on some of the legal issues here, and a longer article on the broader issue of holding elections in the wake of emergencies.

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  1. is this the right thing to do?” rather than “is this the politically expedient thing to do?”

    One might hope that we would not be arguing legal formalities and instead agree the right to do is not force people in choosing between being disenfranchised or risking their lives. That hope first applied to the elected branches, but to no avail. It then fell on the judiciary, with the same result.

    1. Or one might hope that the right thing to do is to not create precedents toward unilateral power and abrogation of legislative authority. The claim that “this crisis is unique” is common – and commonly wrong.

      If you want to be angry, take it out on the state legislature that had the full authority and plenty of time – and did nothing.

      1. Rossami,

        You ignore the fact that the legislature is run by Republicans, and hence will do whatever benefits the Republican Party.

        A theory that expects legislatures to act against their own political self-interest is worthy of nothing but ridicule.

        1. Oh ho, you think that Democrats would have behaved differently? Or did you just decide it was fun to poke at the party you don’t like?

          A true neutral observer would have noted that the legislature is populated by political hacks and ignored the party affiliation, which would only be interesting as far as being the same or opposite of the governor, or expected to win or lose seats dependent on the election timing. That would have been useful, unlike your pure partisan jab.

          1. Bernard didn’t say that. We also don’t know that.

            What we do know is the GOP behaved like they did.

            1. They did = What we do know is the GOP behaved like they did.

              And the voters of WI will hold them accountable.

              1. Which is a cop-out. Moral judgments are personal judgments, not to be thrown onto the morass of electoral motivations, and now the confounding factor of all the gerrymandering and other voting shenanigans are there as well.

                I will hold the WI GOP accountable. The bastards taking risks with other people’s lives to get one more judge confirmed so their gerrymandering can continue.

                I think it may be legal. It may not have electoral consequences. But that doesn’t make them any less awful.

                1. Not at all, Sarcastr0 = Which is a cop-out.

                  If you live in WI, you can hold them accountable through the ballot box. Heck, you can even put your money where your mouth is, and send money to opposing candidates. That is how the system works. I am content with letting the people of WI deal with it. They live there, they live with the decision, and they know the overall situation best.

                  1. No – electoral success does not absolve this decision. That’s how our democracy works. It is not how morality works.

          2. As sarcastro says, I made no claim as to what Democrats would do. We don’t know what they would do.

            I pointed out that the argument that it was up to the legislature is silly because the legislators can be expected to act in the interests of their own party. (This is also the gaping flaw in the “let the legislature deal with gerrymandering” argument).

            And if you want a partisan jab, I’ll note that the Republican Party is doing whatever it can, everywhere it can, to suppress voting, and has eager allies at the Supreme Court.

            1. “We don’t know what they would do.”

              Evers is a Democrat. He was all for the election until he saw the absentee ballot figures from the GOP parts of the state. Then he waited until after the last minute to do something he said he lacked the power to do.

              1. Oh my, are you telling me a Democrat was making a partisan decision under the guise of safety?

                *gasp*

                bernard and sacastro, of course, will keep their heads squarely up their own butts and deny the obvious truth.

                1. Or maybe Bob’s telepathy is more partisan narrative weaving than truth, Sam.

              2. That doesn’t even make sense. This is a primary. It doesn’t affect Democrats if lots of Republicans vote in a primary.

        2. I ignore it because the political party of the actors is irrelevant. This was the legislature’s job to solve. They didn’t. The governor tried to usurp their authority but two wrongs don’t make a right and allowing a precedent where governors can ignore legislatures would be worse in the long-term. My analysis would be the same if the partisanship were reversed.

          Now, if you’re trying to say that political realities make legislatures generally unfit to regulate elections, that’s an entirely different argument. The problem with that argument is that governors are subject to the same political realities and are no more fit to the task. And courts certainly shouldn’t be wading into that swamp. The answer has to be a constitutional amendment changing the way the state regulates its elections. And the fatal flaw to that argument is that, to date, no one has found a process or body that’s any less bad or less subject to influence and abuse over the long-term.

          1. I ignore it because the political party of the actors is irrelevant.,/i>

            No. Republicans are engaged in a nationwide effort to suppress votes. This is part of that.

            1. Do you think ballot harvesting, like the Dems tried to sneak into the Corona bill, is a good thing for election security or a bad thing for election security, or neutral? Why or why not?

              1. Everybody deserves the right to vote. Citizen or not. Alive or Dead. Fake or Real. Everyone gets to vote.

                1. Weak accusations some kind of everpresent voter fraud are all you have as you openly do whatever you can to contract the franchise.

                  1. When over 100% of those eligible to vote do vote, you clearly have a fraud issue. If you understand what 100% is, you’d understand why.

                    1. You’d think if there was a clear fraud issue one party or the other would be suing. But they don’t.

                      That’s because all of those have been explained as an issue either with the reporting, mixing up voting and registering to vote, or the eligibility number.

                      Does’t stop unscrupulous blogs from hyping up the initial number and not the eventual retraction

                      You’ve gotten played.

                    2. I’ve always figured both parties hands were dirty up to their shoulders, albeit in different districts, and that neither of them wants to start lobbing charges to start a series of tit for tat that could evolve into mutually assured destruction.

                      So, the activists outside the parties complain about fraud, but the party establishments keep their mouths shut about it.

                    3. AL, that’s not responsive to Ed’s 5:48 comment.
                      It’s also a separate issue, that doesn’t seem to indicate any actual fraud.

                      Brett, taking refuge in general cynicism plus rampant speculation is how I know you’ve got nothing. Speculating why you don’t have any evidence is not the same as evidence. So maybe quit throwing around accusations.

                  2. There are more than 400 counties in the US where the number of registered voters exceed the number of citizens….

      2. I agree, the legislature deserves the brunt of the blame.

        1. Yes, the state legislature didn’t cover themselves with glory here.

    2. In a rare moment of candor, CNN described it as a stinging loss for Democrats, overtly showing the view the court is a crypto-legislature engaged in politics.

      Come on, guys! You’re supposed to hide it better than this with at least a patina of lip service to impartiality.

      1. That doesn’t follow – a loss in court is a loss to someone every time. That doesn’t mean there’s legislating from the bench going on.

  2. For a while I was placing bets with a friend on the outcomes of voting rights cases before the current SCOTUS. He won’t bet with me anymore, because my “The outcome will favor Republicans” rule works too well.

    Feel free to use it for the next next several cases. It will keep working.

    1. Of course the outcome will favor Republicans. Republicans have a majority on the court. All talk of how they were merely applying principles in a neutral fashion are laughable.

    2. Only because the Republicans get shafted more…

      1. Dr. Ed, you have got to be kidding. In two of the last four presidential elections, the Republicans lost the popular vote but got the White House anyway. The two senator per state rule means that 400,000 Wyoming Republicans cancel out 30,000,000 California Democrats. In which parallel universe do Republicans get shafted?

        1. When a tiny state lost one of its two representatives, doubling the total to some 800,000 for their remining one, so California could shrink its per-rep burden down 10,000, I didn’t see much complaining from the left.

          Anyway, good luck convincing the people in the heartland the problem with America is that the concrete canyons don’t have enough power already to ham hand their fingers into everything.

          1. WTF are you talking about? Did you get that from Fox?

            California has 40 million people and 53 Representatives, about 750,000 people per Represenative.

            1. Montana currently has a population of 1.09 million, so, 1.09 million people per district.

              In 2018, Greg Gianforte obtained over 250,000 votes to become representative in Montana. Meanwhile, in 2018 TJ Cox won California’s 21st district with just 57,239 votes.

              1. Tough shit for Montana. Those same 1.09 million get two Senators, just like the 40 million people in California. They also get three electoral votes. So if you’re claiming they are underrepresented you’re full of it. Montana voters enjoy influence way out of proportion to their numbers.

                And what does that have to do with Krayt’s innumerate claim about a 10,000 per rep ratio in CA?

                1. Krayt was clearly saying that the realignment reduced California’s constituent/rep ratio by 10,000, not to 10,000.

                2. “Tough shit for Montana.”

                  I’ll have to remember that argument the next time you complain about representation and equal votes. In the House of Representatives which is supposed to be based on population, every 2 California residents are worth 3 Montana residents.

                  If you base it off actual voters, every 1 California voter is apparently worth up to 5 Montana voters…

                  1. And every California voter to the right of Nancy Pelosi gets no representation in the Senate, and usually none in the House.

          2. Anyway, good luck convincing the people in the heartland the problem with America is that the concrete canyons don’t have enough power already to ham hand their fingers into everything.

            You seem to be unfamiliar with the American political system. The “people in the heartland” are the ones who enjoy outsized power in this country. So much so that they gave us our current breathing disaster of a President.

            1. The people in the heartland are the ones that produce the food you put on your table to eat.

              1. …Which isn’t an argument they should get more weight to their vote.

              2. And they get paid for it, not to mention they get all those fat subsidies from everybody else.

                Besides, I’m happy for them to have political influence in proportion to their numbers. That’s all I want. I’m just tired of hearing about their superior virtue, wisdom, etc.

          3. Krayt, it’s not the “concrete canyons”, it’s the individual voters who live there. Each individual voter’s vote should count the same, whether he lives in Manhattan, New York or Manhattan, Kansas. And that should be true whether we’re talking about electing presidents, senators or representatives. Why should a Kansan’s vote carry more weight than a New Yorker’s? Other than the bare partisan reality that you like the result.

            1. I’ll take a living voter in Kansas over a dead one in NYC….

              1. Oh STFU.

                If you want to claim voter fraud, prove it, asshole. Don’t just throw some Hannity/Limbaugh bullshit out there as though it’s obvious truth.

            2. Can you describe your ideal American system would work? Anything I can think of that could be plausibly described as making “[e]very individual voter’s vote … count the same” would be a pretty radical departure from how our system of government works (and I’m not talking about the senate).

        2. 2004, 2008, 2012, 2016….

          Bush took a majority of the popular vote in 2004,,,,

        3. This is a federal republic. Think about what those words mean.

    3. It would be more useful to have actual citations to actual comparisons, not just your bets with a friend who may or may not be more partisan than you.

  3. “The state legislature refused to act, however, leaving the matter to the Governor and the courts.”

    Bzzzt! When the state legislature refuses to act on a matter which is in it’s own area of authority, that doesn’t leave the matter to the Governor and the courts. The refusal to act IS the state legislature’s chosen action.

    The power to legislate is also, trivially, the power to refrain from legislating.

    1. “The power to legislate is also, trivially, the power to refrain from legislating.”

      The power to save lives is also, trivially, the power to refrain from saving lives.” Fixed that for you.

      1. That’s true, trivially. 😉

        The legislature gets to make calls like this, it’s literally their job. Just because we agree they made the wrong call, doesn’t magically make it somebody else’s job. Somebody is always going to think they made the wrong call.

        The judiciary only get to override them if they make an impermissible call.

        1. I’m not sure that’s universally true; state separation of powers can get pretty tangled at times.

          But it could be true in WI; I’ve seen analyses go both ways. And both sides get into some weedy, weedy, weeds. WI is certainly tangled.

          Also doesn’t mean it’s not worth condemning the GOP’s behavior here.

    2. The power to legislate is also, trivially, the power to refrain from legislating.

      And the WI legislature has never made a law establishing a deadline for the postmark on an absentee ballot. The Supreme Court made that rule up out of whole cloth.

      1. No, they didn’t. What the heck do you think an “election day” is, anyway? Just an irrelevant date, and you can keep voting after it’s past?

        Nobody anywhere gets to vote after the election is over.

        1. In Wisconsin election day is, among other things, the deadline for receipt of absentee ballots. If that deadline is moved it’s moved.

          You don’t actually need a postmark rule. You can make one if you like, but WI didn’t have one. You are making shit up, just like the loyal Republicans on the court.

          1. You’re just rationalizing that the courts can change the law. That’s all you’re really doing.

            Election day in Wisconsin was yesterday. The election is now over, voting is over. The courts could give ballots filled out and posted by yesterday enough time to make it through the postal system. What they couldn’t do was authorize casting ballots after yesterday, because the election was over.

            Only the legislature had the authority to change election day, and they decided not to. I agree that it was the wrong decision, but it was their decision to make.

            1. You’re just rationalizing that the courts can change the law.

              Changing the law is exactly what the WI court did in nullifying Evers’ order moving election day.

              The Governor has the power to “issue such orders as he or she deems necessary for the security of persons and property.” He was able to stop civil trials under this power, but not postpone the election for a week, per the WI court.

              1. Because he only had that power in regards to administrative rules, not statutes.

                1. Well, per the dissent,

                  Underscoring the executive branch’s ability to take action in circumstances such as these, even the Secretary of the Department of Health Services is authorized to act. Specifically, Wis. Stat. § 252.02(3) provides that “[t]he department may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics.” Even more broadly, Wis. Stat. § 252.02(6) sets forth that “[t]he department may authorize and implement all emergency measures necessary to control communicable diseases”… If the Secretary of the Department, part of the executive branch, has the power to forbid public gatherings to control outbreaks and epidemics, then surely the Governor as the head of the executive branch has such power. Nevertheless, the majority takes the decision away from the executive branch despite the statutes that place such a decision within its purview.

                  1. And the majority says,

                    In Executive Order No. 74, the Governor relies specifically on paragraph (4)(b), which grants the Governor authority to “issue such orders as he or she deems necessary for the security of persons and property.” Wis. Stat. §323.12(4)(b). While broadly worded, this provision must be read in light of the whole statute. Notably, in paragraph (4)(d), the Governor is granted the power to “[s]uspend the provisions of any administrative rule” if certain conditions are met. In contrast to this power, nothing in subsection (4) grants the Governor the power to suspend or rewrite statutes in the broad fashion asserted here, what amounts to ignoring or rewriting statutory provisions governing mandatory election dates, mandatory election procedures, and terms of elected office. Since the Legislature provided the Governor the authority to suspend dministrative rules in paragraph (4)(d), 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. Therefore, Wis. Stat. §323.12(4)(b) does not support the governor’s broad assertion of power.

                    It doesn’t appear to me the dissent’s argument really addresses what the majority said.

  4. Seems to me that the Wisconsin Supreme Court had no choice unless they wanted to write a terrible opinion that allowed whatever facistic whims a future governor would want to enact in an “emergency”. Yes, C19 is bad, but on the scale of emergencies it is one that is extremely predictable and repeatable (pandemics happen, we have always known this), and this pandemic is only an 7-8/10 on the pandemic scale, we are letting people go to the store after all. Also, the risk of voting is known (and mitigatable) to those who make either choice, which is different from another emergency like an earthquake that makes Milwaukee impassable or something like that.

    SCOTUS, on the other hand probably could have been freer without creating incredibly destructive precedents if the parties asking for extensions had found some more arcane rule that is not in the Constitution or in the VRA (or other core, oft litigated statute). The problem is that this crisis is not unique, unprecedented, or a one off. Granting this extension would create almost ubiquitous meddling from federal courts for years because there are always people looking for an excuse to impose new rules for voting using the courts from both sides.

    TLDR: Emergencies are too easy to conjur, and pandemics are something we should expect to live with, and indeed have previously (and are probably increasingly likely in the future). We have to live with this one using as normal of legal procedures as possible, because the alternative is chaos.

    1. As I said above, this strikes me as a state-specific situation.

      But your reasoning is vastly more sweeping, and pretty wrong. You excluded the middle really hard. You don’t think there’s a way to cabin emergency powers?

      1. Not really. Neither the losing parties nor the dissents in either case presented compelling lines they would draw.

        Also, like I mentioned. Pandemics are not an abnormal situation. They are common, longstanding, and oft repeating. Judging the severity of a pandemic is also something judges are not very well suited to do. Indeed, we are seeing as this plays out that judging this pandemic is starting to approach the comical “economist” situation. Ask 10 epidemiologists how many people will die of C-19, get 11 answers.

        1. Courts draw lines all the time. Pandemics are an abnormal situation. And no, they do not repeat. You’re thinking epidemics, maybe?

          1. Courts do draw lines all the time. I’m saying in this case the losing parties and the dissents did not present lines to draw that were clear or compelling. This is a common sign of a weak dissent (because dissents are easier to write they often seem like they are making good points).

            We have had either 2 or 3 pandemics (depending on if you count ebola) in the 21st century. That is more than common enough to be suspicious of any power grabs or demands for rapid changes. Some of the measures people are undertaking are fairly facistic right now, and it seems to me that a lot of the people in power are enjoying it. Which is troubling.

            1. Line drawing doesn’t have to be briefed for the court to do so. But your thesis has shifted – your argument above assumes lines cannot be drawn. That seems like poppycock – as I said, courts have no trouble drawing lines to cabin when a given exception applies.

              Ebola was not a pandemic; neurodoc dinged me for being imprecise in my definitions a few days ago. Your argument has also shifted again. Before you argued more than common “common, longstanding, and oft repeating.” Those second two are straight wrong. Common is a more nuanced question…it sounds like it involves line drawing. If only we had a body that could do something like that with authority…

              it seems to me that a lot of the people in power are enjoying it.
              When your argument relies on telepathy about the other side, it’s not an argument, it’s your own feelings.

              1. The court COULD draw lines yes. I’m saying that the parties and the dissents which had opportunity to do so did not do so in a compelling fashion. I don’t really see what you are saying on this point. People had the opportunity to propose good lines that would allay concerns that the decisions would be abused in the future. In that task all the relevant parties failed.

                Pandemics are common (about 1 a decade, slightly less) and the occurence of pandemics is longstanding (it is not a thing that the previous governments did not know was possible, so the default is that they wrote the rules knowing that it could happen), and the same is true of recurring ( just like you don’t abort the same baby every time, a legal rule about abortion should treat the issue as if it is going to happen again). And again you haven’t even addressed one of my main points which is that this is a classic “judges lack the expertise” political question. Judges don’t rule whether a 5% or 10% tax rate will actually bring in more revenue to the treasury, nor that Saddam is likely or not to have WMD. These are all the sorts of questions judges have traditionally avoided.

                1. I’m taking issue with your point at 8:45 pm. Seems to me that the Wisconsin Supreme Court had no choice unless they wanted to write a terrible opinion that allowed whatever facistic whims a future governor would want to enact in an “emergency”.

                  If you don’t see why this pandemic is distinct from previous ones, you aren’t trying.

                  If a judge is making an exception for exigency, they get to decide the contours of the exigency.

  5. The decision is nonsense.

    What is the point of allowing WI to extend the deadline for receipt of absentee ballots to the 13th, if you also say they must be postmarked by the 7th, especially in the circumstance where voters did not even get their ballots by the 7th?

    Well, the point is, as usual, to keep people from voting. SCOTUS does this by inventing a statute that does not exist in WI law. Those who defend this sacrifice any claim to be in favor of interpreting the law as written, blah, blah, blah.

    1. The decision isn’t nonsense. It is arguably sub-optimal from a policy standpoint, while possibly being the best decision available to a judiciary which doesn’t possess all the powers of every branch of government to wield as it sees fit.

      That is to say, the judiciary is actually bound by the legislature’s decision not to change the date of the election, which means that only votes cast on or before that date can be counted.

      This is what it means to HAVE an election day. They didn’t pull that out of their asses, nobody anywhere lets you cast a vote after the day of the election, when the election is over.

      Now, what’s the point of extending the deadline for receipt, but not the date they’re postmarked? It allows time for the postal service to deliver the absentee ballots that were actually cast in time.

      Would it have been better if the election had been put off for a week, to allow everybody who wanted one to get an absentee ballot? Sure, I absolutely agree, and shame on the state legislature for not doing so.

      But “the least dangerous branch” was not invested with the authority to do so in their place.

      1. This is what it means to HAVE an election day. They didn’t pull that out of their asses, nobody anywhere lets you cast a vote after the day of the election, when the election is over.

        And what does it mean to have a pandemic, so absentee voter didn’t even get their ballots by election day? According to you it’s OK to declare a non-emergency emergency so Trump can steal some money for his wall, but not to make an arrangement in a real emergency so people can vote.

        This is what it means to HAVE an election day. They didn’t pull that out of their asses, nobody anywhere lets you cast a vote after the day of the election, when the election is over.

        Ah. Bellmore law. In the case of absentee ballots in WI what it normally means is that election day is the deadline for receipt of absentee ballots. That deadline was extended. Nothing in WI law says anything about postmarks.

        It doesn’t actually matter what other places do. Missouri law is no more binding on Wisconsin than Bellmore law is.

        1. Look, Bernard, I understand that, on the left, people tend to think of the judiciary as the super-dupper make everything right when you don’t like what the other two branches have decided to do, branch.

          But that’s not their job. Decisions like this aren’t the judiciary’s to make. They’re the legislature’s. And the legislature, for whatever reason, decided not to change the date of the election.

          I don’t have to agree with that decision to recognize that it was made by the people with the authority to make it, and it isn’t the judiciary’s job to second guess that choice.

          The election in Wisconsin is OVER. It’s DONE. You don’t get to keep voting for a week after the election day, that’s what the election day MEANS.

          It’s just like with Trump’s emergency declaration on the border. The law was unambiguous about who made that call: Trump. I might agree that there was an emergency, you might disagree, neither of us was delegated the legal authority to make that decision. Trump was.

          You really need to stop thinking the judiciary exists to reverse any decision by the other two branches that you don’t like. That’s not their job. They only get to reverse decisions the other two branches weren’t legally entitled to make.

          It sucks when the people legally invested with the authority to make decisions you disagree with. That doesn’t mean they aren’t invested with that authority, or you’re entitled to go crying to a judge who will make it all better.

          1. The election in Wisconsin is OVER. It’s DONE. You don’t get to keep voting for a week after the election day, that’s what the election day MEANS.

            That’s what you want it to mean.

            1. Pull your head out of that rabbit hole for a moment. That’s not what I want it to mean, I agree that the legislature did the wrong thing in not moving the election a week to give more people time to obtain absentee ballots.

              It’s just what it DOES mean. Words have meanings. They continue to have them even if you find them inconvenient.

              1. No Brett. You are doing your usual “Brett knows the precise meaning of everything” act.

                Election Day is the day you can vote in person. There is absolutely no reason it has to be the deadline for postmarking absentte ballots. That’s you making up a meaning convenient for yourself.

                And by the way, while you’re criticizing Republicans, what about the state Supreme Court. Apparenly, emergency powers are broad when a Republican exercises them, and narrow when it’s a Democrat.

                1. You’re doing your usual “nothing actually has a meaning” act.

                  In many states you can vote in person before election day. What election day is, is the LAST day you can vote, because after election day, the election is over, complete.

                2. bernard11, I think we just let the people of WI sort out the mess. The Legislature has to face voters in November. If they acted stupidly in the eyes of the people of WI, there will be no saving incumbents. They will be unceremoniously dumped from office. I’m good with that. You should be too.

    2. “What is the point of allowing WI to extend the deadline for receipt of absentee ballots”

      Is the post office having no effects from the virus? I imagine postal employees get sick like other people.

      1. Even when they don’t get sick, they don’t collect the mail in the morning, and deliver it in the afternoon, (They did this at one time, for local mail at least.) so extending the deadline for receipt allowed ballots posted on election day to be counted.

  6. I certainly hope that this November, the voters of Wisconsin will remember that it was the Republicans who forced them to jeopardize their health and stand in line for hours to exercise their right to vote. If those Republican legislators get re-elected, the voters will deserve exactly what they got today by virtue of having ratified what they got today.

    1. “I certainly hope that this November, the voters of Wisconsin will remember that it was the Republicans who forced them to jeopardize their health and stand in line for hours to exercise their right to vote. If those Republican legislators get re-elected, the voters will deserve exactly what they got today by virtue of having ratified what they got today.”

      You do know that the Republicans have gerrymandered their way into a near-unbreakable lock on power in Wisconsin, right?

      1. Like the Democrats have done elsewhere?

        1. Surely you understand that gerrymandering is only unacceptable where Republicans practice it. It’s totally tasteless of you to make reference to Democrats also gerrymandering.

          1. Brett, gerrymandering is wrong when Republicans do it, and it’s wrong when Democrats do it. In this case, however, it’s Republicans who did it. I don’t think there’s an obligation to say “both sides” when one is discussing a specific example of bad behavior.

            And it’s only possible because a Republican Supreme Court decided not to do anything about partisan gerrymandering. Do you have a “both sides” counter example for that?

            1. “I don’t think there’s an obligation to say “both sides” when one is discussing a specific example of bad behavior.”

              There might not be an actual obligation to do it, but doing it is always appropriate. It’s called context.

              “And it’s only possible because a Republican Supreme Court decided not to do anything about partisan gerrymandering. Do you have a “both sides” counter example for that?”

              Yeah, actually. If you had wanted the Supreme court to do something about gerrymandering, really wanted it, the left should have refrained from continually pushing bogus definitions of “gerrymandering” that were designed to only be triggered by Republican gerrymandering, and not by Democratic gerrymandering.

              Congratulations: You managed to convince them the whole topic was too ambiguous and political for the Court to get involved in.

              1. the left should have refrained from continually pushing bogus definitions of “gerrymandering” that were designed to only be triggered by Republican gerrymandering, and not by Democratic gerrymandering.

                Oh bullshit. There were several reasonable metrics offered to the Court, but John “math is hard” Roberts

                1. I follow this pretty closely. “Several” metrics is a big part of the problem. When you have several different basis for making a decision, which lead to different results, this looks to the Court like a political policy decision of the sort legislatures should be making, not a legal decision.

                  Another part is the matter of “majority-minority” districts. It’s really hard to expect the Court to prohibit gerrymandering with one hand, while mandating it with the other. I don’t expect any judicial solution to gerrymandering so long as the Voting rights act is being interpreted to mandate it in some cases. You can’t square that circle, either it’s forbidden or mandatory, but it can’t be both.

                  But, drop this stupid “efficiency gap” criteria. It’s too transparent that it’s designed to neutralize the Democrats political geography problems, and immunize pro-Democrat gerrymanders.

                  1. Brett, even if I agree with you on the metrics issue, which I’m not sure I do, if there is indeed a constitutional problem, the solution is not for the courts to do nothing at all. At that point, the court should say that there is a constitutional problem and we’re giving the legislature the first opportunity to fix it. If the legislature fails to do so, the court will impose a remedy. That way, you’ve protected the prerogatives of the legislative branch while at the same time putting them on notice that the status quo violates the Constitution, and that the court may act if the legislature doesn’t.

                    The Vermont Supreme Court did that with gay marriage. It ruled that laws limiting marriage to heterosexual couples were unconstitutional, and then gave the legislature the first opportunity to fix it. Which the legislature then did.

                  2. “Several” metrics is a big part of the problem. When you have several different basis for making a decision, which lead to different results, this looks to the Court like a political policy decision of the sort legislatures should be making, not a legal decision.

                    Nonsense. The Court can pick one, or it can say as long as you pass a test based on any one, you’re fine. Not hard.

                    But, drop this stupid “efficiency gap” criteria. It’s too transparent that it’s designed to neutralize the Democrats political geography problems, and immunize pro-Democrat gerrymanders.

                    How does it “immunize” Democratic gerrymanders? You mean districts that give Democrats fair representation, or are you interested in punishing city dwellers for their political views?

                    The disdain for cities which permeates right-wing politics, by the way, is pretty disturbing. The people who live there, whether you like it or not, are just much Americans as rural dwellers. They should count the same, person for person.

                    1. It’s quite simple how it immunizes Democratic gerrymanders.

                      Because of the political geography problem, (Democrats being concentrated in areas where they have 60, 70, 80, or even 90% of the vote, while Republican areas typically run more like 55%.) it takes a considerable degree of gerrymandering to get Democrats even to parity in most states.

                      Specifically in Wisconsin, the plaintiffs hired an expert, and told him to draw the most favorable possible map while not violating compactness and equal population. And the best he could do was a map that was 2% in favor of the Republicans! The median map in Wisconsin, drawn without any attention at all to political outcome, favored Republicans considerably more than that.

                      That means that the Republicans started about 2/3 of the way to being declared a gerrymander before they put any thumb on the scale at all, while the Democrats would basically have to STAND on the scale, never mind a thumb, to even get to a 0 efficiency gap, and could not have plausibly reached an efficiency gap in their own favor high enough to trigger their proposed criteria for declaring a gerrymander without hiring M. C. Escher to draw the map.

                      The proposed criteria would have made it essentially impossible to declare the most biased Democratic map to be a gerrymander.

                      No, let me follow this up by saying that the Wisconsin Republicans were not content with just having a built in natural advantage, and stood on the scale themselves, a very gross gerrymander. A sufficiently gross gerrymander that the Democrats would likely have won the case if they had just proposed neutral criteria, instead of trying to trick the Court into rigging things in their own favor.

                    2. Brett,

                      So “compactness” is more important than equitable representation? More geography worship.

                      More likely, “Hey, real Americans don’t live in cities.”

                    3. Yes, Bernard, “gerrymander” has a meaning, too, and “Democrats don’t do well” isn’t it.

                    4. “So “compactness” is more important than equitable representation? More geography worship.”…..

                      Bernard, this might surprise you but geography has a major role in communities and what is important to various communities. Just considering with a party, a Democrat representing a rural southern area will have different priorities than a Democrat representing a urban northern area. A Democrat from NYC will have different priorities for their constituents than a Democrat from rural upstate NY.

                      When you start drawing snaking lines from the core of an urban city out to the suburbs and rural areas, you mix communities, guaranteeing that someone isn’t going to really be represented.

                      Chicago is an excellent example of this. You’ve got the 1st, 2nd, 3rd, and 9th Congressional districts that all snake into the center of Chicago, then have a big tail out into the suburbs and rural areas. Rather than group the suburbs together, the rural areas, and the city center, these communities of interest are cracked and mixed with partial other communities of interest. It ensures some voters won’t really be represented.

              2. the left should have refrained from continually pushing bogus definitions of “gerrymandering” that were designed to only be triggered by Republican gerrymandering, and not by Democratic gerrymandering.

                Utter bullshit. There were several reasonable metrics offered to the Court, but John “math is hard” Roberts refused to consider them.

                1. Because the Constitution gives the authority to draw lines, for better or worse, to the states, not the courts, fucko. Stop whining about metrics already.

              3. Did you actually read the decision? It discussed at length both Republican gerrymandering in Wisconsin and Democratic gerrymandering in Maryland.

              4. And no, it’s not called context; it’s called what-aboutism.

                Do you have children? When you need to discipline one of them, and he says “but my brother did such and such”, what would be your response?

                1. “Fine, and I’ll punish him, too.”

                  1. My mother’s response was always “We’re not talking about him, we’re talking about you.”

                    1. Yeah, and that’s fine if you’re a mother talking to a child, rather than somebody holding a conversation with an equal.

        2. So, two wrongs make a right, Dr. Ed?

          Yes, bratschewurst, I am aware of that. However, given that Republican voters were also standing in line for hours, and jeopardizing their health to vote, one might hope that there would be a tipping point at which even they say enough. Maybe not.

          If not, just remember that those who make peaceful change impossible, make violent change inevitable. The majority is not going to accept being locked out of power forever.

        3. A tellingly empty partisan response from Ed. No such thing as principles, just make your bar as low as you view the other side.

        4. What about ?????

  7. If a registered voter submits a timely application for an absentee ballot, and does not receive that ballot in time to return it, and is afraid to go to the polls for fear of catching a potentially fatal disease, that voter has been disenfranchised. That happened to a lot of Wisconsin voters today; thousands at least. If the right to vote means anything, it means that it can exercised without undue risk to life or limb.

    Neither court seemed to care about that yesterday.

    1. What’s “timely”, though? The date of the election has been public knowledge since, what, several years ago?

      1. I would assume that “timely” is whatever a court says it is. Probably pretty fact-specific (and would largely depend on local election laws). If a court found it was timely, then that seems to be the end of the debate on that issue, right? I thought that this is what happened in this case…the fact-finding court made a determination that the ballot requests were timely. Given that; I am not seeing how those voters (who ended up not receiving the mail-in ballots) are not disenfranchised.

        1. Since were not allowed to edit . . . I should have added: An appellate court could overturn a lower court’s determination of timeliness. But I presume that this would only be if that lower court had clearly abused its discretion. And I just don’t see any such abuse in this case.

          1. I see at least two instances of abuse.

            1. Deciding to change the statutorily dictated election day. As the courts were reminded in Bush v Gore, election rules are an area reserved to the legislature, the courts aren’t allowed to go around changing them on their own say-so.

            2. Trying to impose a 1st amendment violating blackout on reporting the election results.

      2. “Timely” is “soon enough to have a reasoanble expectation that you would get the ballot in time to mail it back before the deadline.”

        Since the elections office was swamped with applications many voters who applied within that period did not get their ballots in time. Are you suggesting they should have applied in November?

      3. “What’s “timely”, though? The date of the election has been public knowledge since, what, several years ago?”

        “Timely” means according to the deadlines set in the law. There appears to have been thousands of ballots that were applied for by the deadline set by the relevant Wisconsin law but were not received by the voters by election day.

  8. I think the important thing here is that SCOTUS has said that the Dems can’t throw out this fall’s election.

    1. I, uh, don’t think that benefits the side you think that would benefit.

  9. ” That fact that the lineups in both cases broke down along what most would perceive as partisan lines makes for what to me seems like a very bad look for both courts . . . ”

    It’s only a “bad look”, no, sorry a “very bad look” when the conservative side is in the majority.

    1. Running to yell about double standards to better ignore your own side’s bad acts seems the only page in the Republican playbook anymore.

      1. That and accusing the Republicans of what they’re already doing is the sum total of the Team Blue playbook.

        1. This is just more of the same running to yell about double standards I was talking about.

          The GOP did a bad thing here. Own it. Deal with it.

  10. Well, Kavanaugh did say what goes around comes around…..

  11. I live in Wisconsin and the whole fight has been along partisan lines. Governor Ever’s wanted in person voting and delayed doing anything hoping for large turnouts in Milwaukee and Madison. Then at the last minute as the virus hit the two most liberal Wisconsin cities of Milwaukee and Madison he wanted that last minute change. The fact the most sick people and virus fear is in Madison and Milwaukee motivated the Republican to want to hold the in person election, hoping those two liberal cities would have extremely low turn out. Governor Walker’s term found mostly conservative judges on the courts, so they ruled in favor of the Republican and not the Democrats. The concern of either party was never the state’s citizens, but for gaining advantage in the election. It will be interesting to see if the Republican strategy worked. I live in a neighborhood that is mostly older retired conservative people like myself, and many did not vote over fear of the virus. The Republicans may have also motivated the Democrats to brave the virus and long lines to vote by holding out of delaying the election. We will have to wait because of early mail in voting and see who’s strategy worked best in the long run.

    1. The fact that Evers and the democrats wanted in person voting so bad is how we got into this situation. He waited until we were well into early voting to call for a change. Since voting had already started the legislature refused to delay the election. This delay would have come with its own set of problems, such as protecting the ballots that are already in the system for an extended period of time. Evers then issued a unilateral last minute EO delaying the election, an EO he knew was illegitimate because he repeatedly said he had no authority to change the election.
      We no have the problem of the election being over but the results being suppressed for a week. Our last election had the gubernatorial results flipped when Milwaukee “found” 47,000 misplaced ballots. We have good reason to be wary of any changes after voting has started.

      1. That doesn’t track. If Dems want more people to vote, they don’t want in person voting, they want absentee.

        But then I see the voter fraud nonsense. Ah, so you’re one of those.

        1. They didn’t want “more people to vote”. They wanted “more people to vote where they had the majority”.

          They started out thinking in person voting would favor them, ended up thinking absentee would. And changed their demands accordingly.

          1. It’s rather a truism that more turnout favors Dems. Are you arguing that wasn’t true in WI?

            1. Depends on where the turnout happens. In this case, the pandemic is really bad in urban areas, and somewhat of a non-event (Aside from the state-wide rules being imposed to protect those urban areas.) in rural areas. Which means you could anticipate reduced turnout in urban, Democratic areas, and normal turnouts in rural, Republican areas.

              Prior to the pandemic becoming serious, the greater distance to polling places in rural areas tends to make in person turnout higher in the Democratic parts of the state.

              1. Prior to the pandemic becoming serious, the greater distance to polling places in rural areas tends to make in person turnout higher in the Democratic parts of the state.

                Come on, Brett, that’s not how turnout ever goes. Rural, older, conservatives are always harder to discourage from voting, nation-wide.

                Maybe WI is special. But until I see proof of that other than speculation, it looks to me like these arguments that the governor had some callous agenda in being so late in calling for a delay is just desperate to find someone to point to as the GOP endangers people to suppress the vote.

            2. “It’s rather a truism that more turnout favors Dems. ”

              Conventional wisdom has not yet taken account of the change in GOP voting demographics. Working class whites have traditional low turnout.

              Georgia and Florida had high turnout in 2018 but the GOP won, for instance.

              1. OK, then, Bob, glad you’ve joined the ranks of people in favor of national mail-in voting.

                Or were you arguing in bad faith?

                1. My comment is in no way about mail in ballots. Its just a response to your obsolescent college poli sci view.

                  1. Listen, if you are going to speculate that nowadays turnout favors the GOP, then you’d think the GOP would act like it. Not even you are acting like it. So I’m thinking you’re trying to convince me of something not even you think is true.

  12. There were no lines at 54246 polling place. I voted absentee.

    This primary has been egregiously politicized. Wisconsin is a rural red state, vastly white, with two blue running abscesses – Milwaukee and Madison.

    Red, White, and Blue; like the National Ensign.

    1. “running abscesses”

      Fuck you.

      1. Wahhh, baby is upset. Go suck a lemon.

    2. “Red, White, and Blue; like the National Ensign.”

      That’s legit funny. Did you think of it yourself?

    3. I wonder how long Madison will remain Madison if there is a significant and lasting cut in Federal support for higher education.

  13. JFC, this part of Reason is so bizzare. Not only does it have its own set of authors (which is known and expected) but apparently its own bleeding heart lefty commentariat that seem to dominate every post. As a WI resident, I was glad to see the legislature do nothing and the governor get smacked down. If for no other reason than he FINALLY gets to see that there is at least SOME limit to his power in this so-called “emergency.” I’m so sick of the idea that everything needs to be sacrificed for this, especially since outside of Milwaukee and surrounding counties and Dane county, there is essentially NOTHING in this state. Let’s get on with our lives. If you are too pathetic to vote because you are scared of catching a cold, AND too dumb to request an absentee ballot weeks ago when you were told you needed to be terrified and started living under your kitchen table, then I am glad you don’t get to cast a ballot.

    1. Yeah, the lefties dominate.

      **Whippah**

      Between the knee-jerk endorsement of spite-based politics, calling the coronavirus a cold as the deaths top 12K, and the enthusiasm about contracting the franchise, this does rather encapsulate what the GOP thinking on the issue seems to be.

      1. Wouldn’t call my thinking GOP thinking, but Libertarian. You know, what this site is supposed to be about. And call it a cold, call it a flu, call it Ebola, I don’t care- .004% of the nation’s population dying is not worth raising an eyebrow, whatever it is. Especially when you consider that almost all of them are from certain distinct populations, and thus at most, actions can be taken to protect those small segments of the population. If you’re not 85+ years old anywhere, or maybe 70+ and live in shitty area of certain big cities, you statistically have nothing to worry about. Sheer numbers are meaningless- only proportions/percentages. And the percentages tell us that unless you are an old person in Milwaukee, no one in WI has anything to worry about.

        And yes, I make no bones about the fact that I have great disdain for the worship of democracy as a political model. Tyranny of the majority is still tyranny, and much more difficult to throw off because people will say “well, if we voted for it, it must be OK.” Freedom has suffered every time the franchise has been extended. I would much prefer it if only self-sufficient, objective, intelligent people who fully understand the economic and individual liberty impacts of their decisions, and strictly respected the bounds of the Constitution, would vote. And frankly, it is quite unlikely that anyone in the facemask brigade fits that description, so yeah, no tears are shed by me if they are too scared to exercise their rights.

        1. And what makes tyranny of the minority any less tyrannical?

    2. “Let’s get on with our lives. If you are too pathetic to vote because you are scared of catching a cold, AND too dumb to request an absentee ballot weeks ago when you were told you needed to be terrified and started living under your kitchen table, then I am glad you don’t get to cast a ballot.”

      If you are operating a blog and this is roughly the level of standard commentary from your target audience, I am glad you are the voice of the other side of the societal divide.

  14. I would just like to note, that Illinois held it’s primary on March 17th, right in the middle of the shutdowns. There was no massive outbreak of Coronavirus in IL after the election.

    We had a normalish turnout. I worked the polls that day, and it was only slightly lower than, say, 2016, when the Dem primary was still open. I would say about 1/4 or so of low pay part time election judges, which tend to be older, didn’t show up. We covered for them.

    We had hand sanitizer for all the voters to use on their way out. Staff used it frequently. The owner of the polling site property came by every hour with bleach spray and wiped all heavily trafficked areas down. Some voters came in with gloves/mask, but most didn’t. We had two staff workers with mask/gloves, but only because they lived with people with health conditions. The biggest problem was due to IL having no voter ID, every voter has to sign a sheet of paper and we match their signature with the one scanned into the system…hundreds touched the pens that day, which we wiped down every once and awhile.

    In short, everything went just fine.

    1. I was hoping someone would reply about the IL experience, you know, where we have actual evidence that an election in the middle of the pandemic caused no real harm. But I suppose hand-wringing is more fun.

      1. Team Blue doesn’t give up on issues to whine about easily.

      2. I just now saw this, so since you’ve specifically invited responses: Where in Illinois were you? Your experience might be different if you were in a rural area versus South Chicago.

        That aside, the issue in Wisconsin was not polling places, it was absentee ballots.

        1. I’m in a highly urban collar county of Chicago.

  15. The Wisconsin Supreme Court, which had suspended in-person appearances and oral arguments in its own court system due to COVID-19, ordered Democratic voters to physically go to the polls.

    1. No, it said ALL voters have to go to the polls IF they want to vote, IF they didn’t early vote.

    2. Because the Wisconsin supreme court has the authority to dictate its own schedules, and lacks the authority to dictate when elections will be held.

      The court didn’t order Democratic voters to physically go to the polls. It simply declined to change the day of the election.

  16. Let me ask the leftists on the comment thread here a hypothetical question….say we don’t “flatten the curve” and this virus is the same in November as it is today and we no nothing more about it’s kill rate, etc. etc. In short, all things are the same. Would you support Trump delaying the election?

    1. Since elections are handled by the states, I’m not sure Trump has the authority to delay the November election. Assuming he does, I would want to know why, when they’ve had seven months from today to plan for it, that no steps were taken to ensure that the elections could go forward.

      Covid-19 is still a relatively new problem, so I think the states are to be forgiven for not completely having a handle on things like holding elections. By November, that will no longer be true.

      1. I know by November things will be different, and that states run their own elections, and that Trump doesn’t have the authority to change the dates (arguable according to the OP, neither does the WI Gov).

        What I’m asking is a thought experiment.

        If in November things ARE NOT different than today with the virus (or even that the virus outbreak had happened in October), would you want the election held, or not, all things considered?

        1. I would want it held, but I would want it held under conditions that would maximize as many options and minimize as many risks as practicable. Begin early voting in September, add polling places, make it easier to get absentee ballots, be a bit flexible with deadlines. (Most of which, by the way, is stuff I support anyway because I believe in maximizing turnout.)

          I would consider postponing the election only as an absolute last resort under the most dire of circumstances. And I’m not speaking for any of the “leftists” here (I consider myself a slightly left of center moderate); that is strictly my own viewpoint.

          1. Thank you for an honest answer.

        2. Several folks felt like venting at me when I was working the polls during the IL primary on March 17th. It was some variation of; “Why are you having this election now, people could die!” I responded; “If we can have a presidential election during the Civil War, we can have one now.”

          Not an exact comparison, but still comparable in magnitude I think. Then, if they persisted, I said to talk to the County Clerk (a Dem), who was just doing what the governor (a Dem) said. That chilled most of them out, either because the realized it was pointless to yell at the fellow at the bottom of the totem pole, or because they we Dems themselves.

      2. “Since elections are handled by the states, I’m not sure Trump has the authority to delay the November election. ”

        I don’t know where you’re arriving at any doubt about the matter. It’s pretty clear that Trump doesn’t have any authority to delay the November election.

        Congress could, mind you. But not Trump.

        1. My doubt on the matter comes from my not being 100% certain that there may not be something buried in some emergency war powers act or something that gives the president power to be a dictator in case of national emergency. Assuming there isn’t, then I agree with you.

      3. “Since elections are handled by the states,”

        Congress has power under the Constitution to set a uniform date for federal elections. It has done so by a standing satute. Its the first Tuesday after the first Monday in November.

        As Brett says, Congress could change it but certainly won’t.

        1. I wouldn’t say certainly, but it isn’t very likely. Not the least because states have months and months to switch to without cause absentee ballots.

          Seriously, if this pandemic is at levels where delaying a Presidential election is a consideration this fall, we’re all going to have bigger concerns than the date of the election.

    2. In that scenario, we should go universal mail-in.

      If Trump says it’s either indefinitely delay or everyone votes in person, that’s calculated.

      1. Thanks for an honest answer.

      2. “universal mail-in”

        So Dems can cheat like California and Washington where weeks after the election, all the close races always go Dem.

        No thanks.

        1. Bob, your side losing doesn’t mean there’s cheating going on. You sound like a Bernie Bro.

          Cries that the system cannot be made secure ring pretty hollow, unless you bring more than that whinging conspiratorial nonsense.

          1. Democrats cheat. Tammeny [sic] Hall, the Daley machine ad nauseum. They can’t help it, its their nature.

            Dems are clamoring for universal mail balloting. That tells you who they think it benefits.

            1. The fact that your examples are from decades ago (Daley) and centuries ago (Tammany Hall) speaks volumes.

              1. Sorry, “a century”, not “centuries”.

                1. Bah, its a quick blog comment, not a disertation on the history of Democrats cheating.

                  More recent.

                  Al Franken beating Norm Coleman by boxes of ballots found weeks after the election.

                  California Dems are currently mounting a multi front cheating scheme [rigged “nonpartisan” redistricting, jungle primary to reduce GOP general election turnout, ballot harvesting].

                  1. Bob: Why would California Democrats *need* to do any of that when they’ve already got a total lock on California? Cheating is what you do if you’re worried you might lose. There is no reasonable scenario under which the Democrats lose California any time soon.

                  2. There was not a more scrutinized campaign than Coleman-Franken. If you think that was fixed, you think every election is fixed.

      3. If the election is indefinitely delayed beyond January 20 of 2021, Trump and Pence are no longer President and Vice President per the 20th Amendment.

        1. Or maybe it’ll be like an emolument thing.

  17. A) both the governor and the state legislature is at fault for not arriving a soultion

    B) both the wisconsin SC and the US Supreme Court are correct that they can not change the state election laws. Virtually any legal rationale to allow the courts to modify the election laws in this case would allow the courts to modify/ignore/ make up new rules for any future election with no limitations.

    1. “B) both the wisconsin SC and the US Supreme Court are correct that they can not change the state election laws.”

      Well, in a way they did. Neither court overruled the extension to receive absentee ballots after the date of the election, contrary to state law. Of course the plaintiffs didn’t ask for that either, so perhaps the issue was considered moot.

  18. Related topic, that I want to voice out loud….

    I think Trump was in a catch-22 situation. Had the US gone the route of Sweden and just closed large events, etc. to build up herd immunity (it’s going well for them), than the media would present an endless parade of deaths to lay at his feet. You see this “13,000 deaths on your hands Trump, resign now” thinking on his Twitter feed. Like he didn’t take this thing seriously enough, never mind the travel ban and Dems saying “come out to Chinatown” and that the “travel ban in racist”.

    But if you shut things down, like he has, then his opponents, including many on the right these days, could say, and are saying, that he is tanking the economy, which was doing very well, just before the election. And that he wasn’t “listening to the experts” who are, let’s admit, all over the place on this thing.

    1. Sweden stopped with that herd immunity stuff already. It didn’t go well.

      Do you think Russia is shutting down to spite Trump?

      And as noted in the previous thread, Trump said people called the travel ban racist. No one actually did.

      1. You’re not allowed your own facts:

        Bernie Sanders on 1/31/20: “It is outrageous that Donald Trump continues to push a racist travel policy that dehumanizes immigrants and their families for his own political purposes. On day one of my administration, I will overturn this xenophobic and discriminatory ban.”

        Sweden is doing just fine by the btw. Swedish infection, hospitalization and death rates are higher than neighboring Norway, (about 8,500 cases to about 6,000) which went into full lockdown. On the other hand, there has been no economic shutdown.

        Like I said, maybe Obama had it right with H1N1, but he had a compliant press.

        1. m_K, here’s the tweet: https://twitter.com/BernieSanders/status/1223362594611830784
          It’s to expanding the travel ban, not to the China travel ban. Try again. Or think for a moment. What ban would Bernie be overturning in January 2021? Probably not the China Covid-19 ban.

          Sweden is in full lockdown now. And with higher death rates. So way to go them.
          Maybe don’t blithely talk about higher death rates but better economy; it’s unseemly to most people.

          1. Trump was responding to all the comments on his travel bans, which all have been called racist…in plural. C’mon dude. You’re more capable of analysis than that.
            Folks like Acosta, bring up the “white supremacist” Miller, when criticizing Trump for calling it a “foreign” virus, and call him “xenophobic” and the conversation is about China, where they are all Asian. A sample of CNN’s comments are below where I question where you are getting your info on Sweden.

            We make the lives/economic trade-off decision all the time. Like Obama did with H1N1, and like when we open the economy up. Don’t lecture me about what is unseemly, which is PC bs. And I’m looking at a three articles in the morning of 4/9/20 that are less than 24 hours old saying Sweden is not in full lockdown. One from Business Insider, one from the WP, and one from PBS. Where are you getting your information?
            ———————
            “Now why the president would go as far as to describe it as a ‘foreign’ virus, that is something we’ll also be asking questions about. But it should be pointed out that Stephen Miller, who is an immigration hardliner who advises the president is one of the top domestic policy advisers and speech writer, was a driving force in writing this speech and I think it is going to come across to a lot of Americans as smacking of xenophobia to use that kind of term in this speech,”

            1. Trump was responding to all the comments on his travel bans, which all have been called racist…in plural
              Nope: Q Did somebody come to you with a bit of information, a piece of data? Was it a world leader? Was it a member of your own team? What was it?

              THE PRESIDENT: No. No. It was instinct. No. We had a large group of people right behind me in the Oval Office. And I made it — I consulted with Mike. But we made a decision. I made a decision to close off to China. That was weeks early. And, honestly, I took a lot of heat. Sleepy Joe Biden said it’s xenophobic. I don’t know if he knows what that means, but that’s okay. He said it’s racist, what I did.”
              https://www.whitehouse.gov/briefings-statements/remarks-president-trump-vice-president-pence-members-coronavirus-task-force-fox-news-virtual-town-hall/

              So you just make up BS to defend previous BS you’ve said? Bad show.

              1. Well, charitably, I didn’t know that Trump said Biden (specifically) said it was racist when Biden only called it xenophobic, and we were debating just about what Trump said about what Biden said (were we now?). In all seriousness, I appreciate the correction on that, but really, that’s splitting hairs when so many others on the left called it racist. Have you ever been on Trump’s twitter feed?

                People die of a thousand different causes everyday that we do little to nothing about, like 15k or so suicides every year, and I’m asking if we should upend the entire economy and in the process irreparably harm millions who are now jobless. The decision Obama made with H1N1 was not to do that. He was comfortable with about 13k dying, and I say this as someone who got the swine flu and was sicker than I’d ever been in my life. Sweden is doing just fine, and there is not some massive die-off in 3rd world counties where they have no real medical infrastructure.

                Remember, there are no solutions, only trade-offs.

                1. 0) OK, I suppose we did get into some nested confusion about the topic. I took travel ban racist to be the China travel ban being racist, since it was the Covid-related action.

                  1) I”m not sure I buy the economy-> lives via suicide reasoning. Everything may be a tradeoff but our emotional exchange rate varies widely. Like it or not, a pandemic trades pretty high. It may not be rational, but sociology trumps rationalism every time (in fact rationalism is rarely rationalism). Did you see my previous post about dread? We don’t treat car accidents like terrorism eather.

                  2) Obama actually did a bunch to prepare for H1N1. https://www.politifact.com/factchecks/2020/mar/06/donald-trump/donald-trump-wrong-saying-barack-obama-did-nothing/

                  1. 0) Okay, gotcha.

                    1) Suicide is just an example of a large number deaths which we blithely go on our business about (mostly) ignoring. There are numerous other examples, of that, and the opposite, like how we up-ended our way of life for 3,000k dead after 9/11. Many were making an argument at the time, including me, that the response (Iraq, Afghanistan invasions, surveillance state) was disproportionate.
                    Yes, we humans don’t evaluate risk well. More are killed in Chicago over a year than troops dying in Iraq, or mass shootings are infinitesimal compared to other gun homicides, or an asteroid strike is likely to destroy humanity than global warming, etc. etc. But why can’t we present the argument about what I would call a measured response, without being called heartless, or not patriotic, like I was after 9/11?

                    3) Sure, Obama did do a bunch of stuff to respond to H1N1. But I am saying he didn’t cut off travel to Mexico, where the cases were coming from into the US, likely due to the economic disruption and bad politics of it. In the end, whatever he DID do, he was comfortable with the number of deaths that his inaction (weighing various trade-offs) would lead too.

                    The April 2009 estimates from the CDC were: between 14 million and 34 million cases of 2009, about 63,000 and 153,000 related hospitalizations and about 3,900 2009 H1N1-related deaths.
                    https://www.cdc.gov/h1n1flu/estimates_2009_h1n1.htm

                    1. “Suicide is just an example of a large number deaths which we blithely go on our business about (mostly) ignoring. There are numerous other examples, of that, and the opposite, like how we up-ended our way of life for 3,000k dead after 9/11. Many were making an argument at the time, including me, that the response (Iraq, Afghanistan invasions, surveillance state) was disproportionate.”

                      What is different about this situation is that the number and severity of the COVID-19 cases has threatened – and continues to threaten – the ability of the health system to respond. Without efforts to flatten the curve, the health system couldn’t treat cases that would others be fatal. That’s why flattening the curve is so important to reducing the ultimate number of deaths.

                2. “People die of a thousand different causes everyday that we do little to nothing about”

                  I do something about it every day. I don’t take my own life. If everyone did the same, the suicide rate would drop to 0. I can also take actions to avoid catching pestilence, which I do. There are a fairly limited number of things I can do to keep you from catching pestilence. Killing mosquitoes is one of them.

            2. re: Sweden.
              https://www.aa.com.tr/en/europe/covid-19-sweden-s-less-stringent-measures-to-change-/1794325

              What’s unseemly is arguing, as you are doing, that as people are dying, it’s okay to let them die for the economy. I know all about making tradeoffs between resources and lives, and it’s not made in a rational utilitarian way. Your argument tries to do so; that’s why it doesn’t play well. You are urging us to act like homo economus, not humans. Not going to work. And quite frankly it makes you look like you lack empathy.

  19. ” I welcome the day, which I hope comes, when the first question our elected officials ask is consistently ‘is this the right thing to do?” rather than “is this the politically expedient thing to do?'”

    For myself, I wish voters would reject candidates who pick “is this good for my party?” over “Is this good for my state/country?” as their primary motivating question.

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