The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
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.
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.