Campaigns/Elections

Why Was the Wisconsin Primary Election a Federal Case in the First Place

Most of the commentary on the Supreme Court's rejection of last minute judicial intervention glossed over the underlying constitutional question.

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Most of the discussion over the Supreme Court's decision to curtail a federal court order expanding the opportunity for absentee voting in the Wisconsin primary election has glossed over what may have been the most important question at issue: Was there a constitutional violation in the first place? This is an important question because if there was no constitutional violation, there was no basis for any federal court intervention in the first place, and the Supreme Court was correct to curtail the district court's order. Indeed, if there was no constitutional violation, the Supreme Court arguably did not go far enough.

Over at Justia, Vikram Amar and Jason Mazzone make the case that there was not constitutional violation justifying federal court intervention. Therefore, as they see it, the Supreme Court reached the correct result, even if it did not adopt (what they think is) the best reasoning.

As Amar and Mazzone note, it is well-established that "'even-handed restrictions' promoting the 'integrity and reliability of the electoral process itself' satisfy constitutional standards," even if they prevent some number of voters from casting ballots. Exogenous events, whether snowstorms or pandemics, may certainly justify legislative responses to make it easier to vote, but they do not produce constitutional violations.

Consider the essential nature of the plaintiffs' claims. Wisconsin law's receipt deadline may be a but-for cause of many voters' problems, but certainly the proximate cause is the COVID-19 pandemic. Should Wisconsin officials themselves have postponed the election? Of course. It is disgraceful that they didn't. And plaintiffs are understandably angered by the state's inaction. But an awful failure to act does not mean Wisconsin's extant regime is unlawful (at least not under the federal Constitution). In essence, what the plaintiffs objected to was not Wisconsin's decision to have a ballot-receipt deadline, but Wisconsin's failure to accommodate voters who had trouble with that deadline in 2020. But there are all kinds of real-world constraints on people's ability to cast their ballots every year that would benefit from accommodation. Moving Election Day from Tuesday to Saturday would facilitate voter turnout. So would making Election Day a holiday. Or providing day care for would-be voters. Or transportation to the polls. Or moving more generally to a vote-by-mail system. But none of these accommodations (some of which we think might be very good ideas) is, under current doctrine, constitutionally required. What that means is that failing to adopt them isn't actionable. So why was Wisconsin's failure to accommodate this month of a different kind, constitutionally speaking?

Election Day deadlines for absentee voting are common. Wisconsin's rules applied evenly to everyone. Large numbers of Wisconsinites were able to request, receive, and timely return absentee ballots (and Wisconsin election officials had agreed to count ballots up to six days after the election provided the ballots were postmarked by Election Day). That others may have been unable to vote does not mean the state was in violation of the Constitution such that a federal remedy was warranted. In a variety of contexts, the Supreme Court has cautioned against displacing state power to administer orderly elections. In so doing the Court has emphasized the relationship between adherence to settled rules and democracy itself. Representative of the Court's treatment of election mechanics is the formulation the Court used in 1974 in Storer v. Brown: "[A]s a practical matter," the Court there said, "there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes."

We are not suggesting that the district court (and critics of the Supreme Court's ruling) might not have comebacks to some of the challenging questions we flag. We are doubtful there are compelling responses, but our primary point today is that we shouldn't be talking about remedies until we have a better sense of what, precisely, violations of federal law need to be remedied. Absent substantial (and not just minimally non-trivial) federal questions, federal courts ought not to be in this game at all.

And that's the point. I believe there is little question that the political process failed the voters of Wisconsin. The legislature was horribly derelict in its duty and should have acted. The Governor may deserve some share of the blame as well. Either way, the failure of political actors to do what they should does not necessarily create a constitutional violation justifying the intervention of the federal judiciary. And insofar as a federal district court judge intervened anyway, it was proper for the U.S. Supreme Court to intervene. Federal courts are not the solution to every problem, and the Supreme Court should not be condemned for trying to remind district courts of that fact.

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  1. Did the political process fail? Yes. But it didn’t fail in March, it failed in the decades upon decades before that. Pandemics are a known risk that occur semi-regularly. SARS 1 could have done the same with a few changes, same with H1N1. Spanish flu was worse. The 1950s Asian flu and 1970s Hong Kong flu are probably C19’s equal. A smallpox outbreak would be much worse, and has been speculated about for decades since we stopped vaccinating.

    This was not an unexpected event. In other words, the Wisconsin legislature knew of the risk and expected Wisconsin citizens to make their own choices. That risk tolerance among many Americans has changed quite dramatically in 2020 compared to the past doesn’t change this otherwise logical decision.

    1. The Spanish flue was over 100 years ago.

      Not a “regular” event in the way most people understand that term.

      In any case, it doesn’t matter. Purposely suppressing the vote, which is a fundamental right, like the GOP did in Wisconsin, isn’t any less unconstitutional because it is done regularly.

      1. Pandemics are routine the same way hurricanes are routine. They have always come, and they will always come. There is no good excuse for any city to not have preparations in place for a 100 year storm.

        It’s the government’s job to look to the future and prepare for things that are certainly coming.

        And pretending that this is somehow solely caused by racism is getting tired.

        1. So you don’t believe Republican politicians when they admit this is the motivation?

    2. A smallpox outbreak would be much worse, and has been speculated about for decades since we stopped vaccinating.

      Why would people be speculating about something that hasn’t happened in 50 years since we stopped vaccinating, given that the disease was eradicated 40 years ago?

  2. I would have thought that the state’s failure to mail out the mail-in ballots in a timely fashion (to a significant number of voters) went much further than merely a failure to accommodate. If the state has set up mail in voting, and a voter has met whatever deadline for sending in her/his request, then the state’s failure to provide those mail-in ballots seems pretty significant.

    In the Wisc. case, when the deeply conservative state Sup. Ct had one of *its own* members on the ballot, the idea of getting a fair state resolution was remote. In California (just to pick a liberal-high-court analogy) in Nov, what prevents the state from imposing anti-Republican roadblocks? Say, no voting from overseas without jumping over hurdles A, B, and C (which all/most members of the military abroad will not be able to satisfy). Would Republicans be satisfied resting their reasonable hopes of being allow to vote on the liberal Cal Sup. Ct? I would have expected that federal courts would be able to weigh in, certainly for federal elections. It is dismaying to think that federal courts might be closed off.

    No wonder so many Republican officials are willing to publicly cackle about how various state laws are put in place specifically to suppress Dem votes. They know that their state courts will not mind such suppression, and I guess they also know that federal courts will not be able to get involved. (Absent implication of the 13th and/or 14th Amendments).

    1. In the Wisc. case, when the deeply conservative state Sup. Ct had one of *its own* members on the ballot, the idea of getting a fair state resolution was remote.

      Those of us who live in reality notice the actual result of the Wisconsin Supreme Court’s ruling being allowed to stand was the liberal challenger beat the (recused-himself-from-the-election-case) conservative. In what the New York Times described as an “upset” and “surprise”, being both only the second time since 1967 that a member of the court lost, and by an unusually high margin for a statewide race in Wisconsin (120,000 votes).

      1. Yes, he lost. Which has ABSOLUTELY NOTHING to do with my point–which was, if one side deliberately suppresses the vote, and the highest state court is stacked by the same party (or, to be technical, is stacked with judges who tend to rule in ways preferred by the same party), that the disenfranchised voters have no effective recourse, if access to federal courts is also barred.

        Part of living in reality is to read what is written and to respond to the gravamen.

        1. Actually, it does. Because the Democrats suppressed the vote in WI.

          Here’s how it works. Early voting and mail in voting favored the Democrats. But when it came to the actual election day (In person voting on election day voting tends to favor the GOP)…the Democrats slammed the door shut, sharply limiting the number of polling places available.

          1. Oh, FFS. That’s a completely false narrative. Dems didn’t slam anything shut.

            Especially because turnout helps the Dems, not the GOP.

            You can tell how bad the GOP knows something looks with how fanciful their revision of reality becomes.

            1. Wow. That’s demented.

              Must have heard it on Fox.

              1. Democrats have a long history of voter suppression, as long at it helps them. Here’s another example, in the great state of New York.

                https://www.cnn.com/2018/07/19/opinions/democrats-need-reform-new-york-primary-weaver/index.html

            2. Certain types of turnout help Democrats. Overall election day turnout helps Republicans. Statistics back that up quite well.

              So, when the door on election day is slammed shut, but alternative methods (like early voting, which helps democrats) are kept…

              It’s pretty clear. Democrats worked to suppress turnout.

              1. Where do you find this stuff?

              2. So the Dems created this disease to slam shut the doors on election day, while the brave GOP refused to give way to this clearly left-leaning disease, and kept things open and did what they could to prevent absentee baloting.

                Your partisanship has robbed you of seeing the real world practicalities.

                1. They didn’t create it. But in the classic philosophy of Democrats everywhere “Never let a crisis go to waste”.

                  And if they twist the voting laws and times a little to get a better result in the polls in current times…yeah, they’d do that.

                  1. Never thought of you as an intellectual whore before.

                    My opinion’s changed. You are truly as delusional as Trump…at least on this issue. Wow; the mind boggles.

            3. In the almost 100% Democrat City if Milwaukee, the Democrat City Clerk decided to only open 5 polling locations when there are normally over 100. National Guard members had gone through the exact training a poll workers goes though and were ready, willing and able to man polling stations. She declined their help.

        2. Either you think the actions of the Republicans in the legislature and the ruling of the Wisconsin Supreme Court (taking their side over the Governor) was a case of “one side deliberately suppress[ing] the vote” or not.

          If it was not, then no point made about deliberate vote suppression, no matter how valid, has anything to do with the situation in Wisconsin.

          If you think it was, then you think a successful case of one side deliberately suppressing the vote resulted in a massive surprise victory for the other side. In which case, yeah, I’m going to again challenge how good a grip you have on reality.

          1. This is some very, very, bad logic.

            Attempted murder is still a crime, even if the guy lived.

            1. The equivalent isn’t an attempted murder that failed to kill the would-be victim; it’s an attempted murder that somehow greatly improved the health of the would-be victim.

              Sure, it’s possible that could be the outcome of an attempted murder. Lots of things are logically “possible” that aren’t remotely reasonable. If you’re making that argument, it’s far more likely that “Your partisanship has robbed you of seeing the real world practicalities.”

    2. If the state has set up mail in voting, and a voter has met whatever deadline for sending in her/his request, then the state’s failure to provide those mail-in ballots seems pretty significant.

      Completely agree with this (state has to play by the rules they made). To be fair, there was significant back and forth between the Governor (Team D) and the Legislature (Team R) for weeks that added to the problem. Neither side covered themselves in glory. WI needs to sort this out.

      Other: I have a somewhat different take. To me, the resolution comes in elections. And so it did, in this case. And so it will, I believe, in November as well. Voters are not stupid. They are more than capable of assessing the situation and then meting out….justice. 🙂

      1. ” Voters are not stupid. ”

        That unqualified declaration seems unsound. ‘Not all voters are stupid’ squares better with my experience.

        1. How ’bout, “All voters are stupid (i.e. ignorant), of the details of almost all issues with the only exceptions being their personal interest(s), e.g., abortion rights, gun rights, Israel, environment – and even then many of those people just squawk the favorite headline.”

          1. Some voters are smart. Some are dumb.

            Some voters are ignorant. Some are not.

    3. “I would have thought that the state’s failure to mail out the mail-in ballots in a timely fashion (to a significant number of voters) went much further than merely a failure to accommodate”

      The state doesn’t mail out ballots. Local clerks do. If some local clerks fail in their statutory duty to mail out a ballot within one day of receiving the application, should the whole election be delayed? Especially where every person who didn’t get a ballot could still go and cast a vote?

      “In the Wisc. case, when the deeply conservative state Sup. Ct had one of *its own* members on the ballot, the idea of getting a fair state resolution was remote”

      And that member rightly recused from the case trying to delay the election.

      1. The “election” would not have been delayed. The final count would have been.

        1. No; the case was about allowing people to cast votes for a week after the election, which certainly constitutes delaying the election.

    4. Excuse me, but the current Justice that was on the ballot recused himself from all actions regarding this issue.
      You can have your own opinion but your facts are wrong.

    5. I would have thought that the state’s failure to mail out the mail-in ballots in a timely fashion

      I think you’re going beyond the facts. That people didn’t receive them in time does not mean that the counties — not the state — did not mail them in time.

      There’s always a risk if one waits until the very last minute that one won’t get one’s ballot in time. Can’t figure out why people were waiting to request those ballots. Did they think coronavirus was going to be cured in the two weeks before Election Day?

  3. This reasoning is just wrong. There is nothing “even-handed” about forcing people to get COVID-19 if they want to vote. There is nothing “even-handed” about processing some absentee ballots in a timely manner (so that some may vote without such risk of exposure) and failure to process others (so that others may vote without taking such a grave risk).

    May the government conduct lotteries, such only those that win the lottery are able to vote? Because that is what happened in Wisconsin.

    This was a truly shameful decision by the Supreme Court. No election outcomes were changed (as the GOP had hoped). But innocent American lives were surely lost.

    1. Argument is easy when you first assume your desired conclusion.

      Now try starting from the premise that maybe, just maybe, your political opponents are not evil vote-suppressors and maybe they had a legitimate reason for acting the way they did. (You don’t have to agree with that reason, by the way. Just acknowledge that your opponent might sincerely believe that it exists.) Then tell us what legal argument you can muster to justify the federal courts intervening in what has been universally understood to be a state’s legislative prerogative.

      1. Even making that assumption, the fact that there exists a fact pattern to throw this into federal court explains the jurisdictional hook.

      2. If find it amusing that you posit the existence of a legitimate reason but then fail articulate it. There is no legitimate reason.

        Killing people for perceived political advantage is not a legislative prerogative.

        It seems some of the politicians have forgotten who is ultimately in charge. And it isn’t them.

        1. I didn’t think I needed to articulate it because it’s in the opposition briefs. It’s also laid out in the article at the top of the page. Did you not bother to read it? Or are you incapable of admitting that your opponents might not be evil?

  4. Quote””Should Wisconsin officials themselves have postponed the election? Of course. It is disgraceful that they didn’t.”
    It also caused a backlash against the Republican held legislature that put a liberal judge on the Wisconsin Supreme court, and will carry over to the fall election. The two most liberal cities where the ones with the highest amount of corona virus cases, yet those are the ones that turned out in droves. I had warned of that right here, and I live in a conservative area of Wisconsin. Many of my older conservative neighbors stayed home from voting due to long lines and virus transmission worries.

  5. The plaintiffs had made some significant allegations, including that thousands of voters who had requested absentee ballots by the deadline for requesting them hadn’t received them in time to mail them in time for the deadline for mailing them in, and that the voters who didn’t receive them were disproportionately in Democratic counties.

    That is, they alleged it wasn’t the voters who had trouble meeting the deadline. It was the state who had the trouble.

    These allegations may or may not have been true. But they did allege an arguable constitutional violation.

    1. Correct.

      All that business about moving election day to Saturday, or providing transportation, is irrelevant.

      Voters requested mail-in ballots in a timely fashion and didn’t get them. That’s entirely different than claiming that the state should provide day care for voters. The state didn’t do what it was supposed to do, and there was an easy fix.

      Exogenous events, whether snowstorms or pandemics, may certainly justify legislative responses to make it easier to vote, but they do not produce constitutional violations.

      This was not an exogenous event. The failure to get the ballots out on time was endogenous.

      1. Agreed. My basic disagreement with this post is that it rather grossly distorts what the plaintiffs alleged, creating a straw man argument. If the plaintiffs had alleged the state had done nothing but fail to accommodate their own difficulties this would be a very different case. They alleged something different, that the state failed to meet its obligation (and that this failure was systematically biasing).

        That’s a totally different case from the straw man case that’s being discussed here.

        I expect better of law professors. Even when a law professor strongly disagrees, he or she should make a strong effort to carefully understand what the other side is actually saying, and respond to that. I would hope that professional ethics would make this the case for practicing lawyers as well. But a member of the academy, someone who is an expert, not just an advocate, should be held to a higher standard still.

    2. “The plaintiffs had made some significant allegations, including that thousands of voters who had requested absentee ballots by the deadline for requesting them hadn’t received them in time to mail them in time for the deadline for mailing them in”

      That’s not true, the lawsuit was filed (and resolved in the lower court) before the deadline for applying for ballots had even come. Stop making things up.

      1. If it’s not true, why did the district court find it as a fact, and why was it the basis of the Supreme Court dissent?

        1. To be clear, I’m not saying it is true. I’m only saying it is a sufficient basis for a genuine federal wuestion. The position of Professor Adler’s post here is not that it should have lost on the merits, but fhere was no basis for making a federal claim. I disagree. There was a basis for making a federal claim. All the justices concluded the matter was properly before them and they had jurisdiction to make a decision on the merits. The proceedings, arguments, and findings in the lower court support this.

    3. Does the state of Wisconsin mail out the absentee ballots, or was it the cities, which are run by Democrats? (Here in Michigan it is definitely the local governments.)

      Most likely, the problem was that there were several times the normal number of absentee ballots requested, and officials hadn’t ordered much extra from the printers. The normal cycle for such orders is much longer than the time between the COVID scare and the election. Then the question becomes, can bureaucrats temporarily stop being bureaucrats and act quickly to get a rush order of more absentee ballots and/or envelopes?

      The bigger the city, the less likely this is – but in any case, extra funds would be needed, and it’s pretty rare for any government agency to have emergency funds that haven’t been drained long before the _real_ emergency comes along. In general, it’s illegal for a government agency to spend more than was in the budget (prepared and passed the year before), and it’s also illegal to move allocated funds to a different budgetary item. So the absentee ballot screw-up was probably unavoidable, short of having an unusually responsible city or county council that budgeted for emergencies, didn’t allow the emergency fund to be blown on trivia, and promptly met and passed a resolution to use the emergency fund when it became clear that there would be a shortage of absentee ballots.

      OTOH, closing most of the in-person voting sites was an avoidable screw-up, and this happened only in Wisconsin’s two largest cities, and was clearly the choice of Democratic officials. It sounds like the 2000 Florida election mess – Democrats wailing and trying to blame others for their own screw-up.

  6. I think both holding and delaying the election were reasonable choices, so I think the vitriol for the decision to carry on is misplaced. Nobody ever talks about the fact that if you delay an election, you are ACTUALLY denying the right to vote in that election to some people. Some real number of people who had the right and ability to vote on Day 1 will not be able to vote on Day 60. Some will die. Some will move. Some will be convicted of crimes.

    That’s a fact, and yet nobody in the election that did proceed was denied the right to vote. Everybody could still weigh the pros and cons of voting and decide not to vote if they didn’t want to. They could vote absentee (and they could anticipate that waiting until the last day to request a ballot might cause problems). If they didn’t get their absentee ballot they could go vote on election day. They could also go to town hall during the weeks-long period of in-person early voting and avoid the crowds.

    These are real problems people faced, but nobody was denied the right to vote. Delaying an election DOES deny some people the right to vote.

    1. nobody in the election that did proceed was denied the right to vote.

      I don’t think you can really say this. What about people who were relying on the mail-in ballot that they didn’t get in time? The disabled, those who had to work on election day? And wouldn’t some people gain the right to vote during the hypothetical 60-day delay, if only because they got old enough?

      It’s entirely possible, ISTM, that lots of voters were effectively denied the right to vote.

  7. Wisconsin did not have a failure, two heavily Democratic cities, Green Bay and Milwaukee, had a failure of leadership, refusing to reassign idled city employees or accept help from the National Guard, which conducted training on elections for the guard to enable them to help in the polling places. Two cities clustered their polling places together, the worst possible thing to do in this crisis. The rest of the state managed to conduct normal election operations.
    It has now been over two weeks since the election, and Wisconsin has not seen an explosion in COVID19 cases.

    1. To rebut a likely response, Wisconsin did have a spike about 2 weeks after the election after a few days of slight declines. BUT half of the cases on that big day came from a single meat plant, so it’s not election-related. The time period is past and the doom-and-gloomers were wrong.

      1. This is a counterfactual. We don’t know how things would have gone.

        And regardless, just because a risk is not made manifest does not excuse risky behavior.

      2. I’m sorry, but how do you know it wasn’t election-related? Someone had to be the first case in that meat plant. How do you know how he got it?

    2. Jesus.

      It was all the Dem’s fault and also nothing happened.

      Cities not calling out the National Guard? Where are you getting this crap?

      1. Sarcastro,
        Can’t speak as to Milwaukee. In Green Bay, the mayor refused National Guard help. He closed 29 polling sites. The city of Green Bay had only 2 polling sites.

        Draw whatever conclusions you may choose.

        1. I conclude you’re not reliable. You have reversed the order of what happened, and made up facts. He closed the polling places first. And with only two places, he didn’t think they needed extra people from the National Guard.

          1. The mayor of Green Bay refused help from the National Guard even when poll workers and local politicians pointed out the lack of poll workers. In fact, two nearby communities held their elections with NG assistance and had no difficulties. They also had more polling places than GB even tho much smaller communities. Appleton and Oshkosh both finished voting at the designated time (8:00 PM). Green Bay polls did not close until midnight so the people in line at 8:00 PM would get to vote.

            Exactly which facts did I make up? I referred to 2 actions of the mayor, both of which you admit he took. You snivel about the order of these actions, but I made no mention of the order. You have no clue as to which he decided first, merely which he made public first. He could have decided to refuse NG help and then used the lack of poll workers as a reason to close 29 polling places. You only have the order in which these decisions were reported.

    3. The question is. Is this a legal failure that invalidates the election, or simply a political failure that we need to punish them for in the next one?

    4. Wisconsin did not have a failure, two heavily Democratic cities, Green Bay and Milwaukee, had a failure of leadership, refusing to reassign idled city employees or accept help from the National Guard,

      I mean, you’re lying; the National Guard did help staff polling locations across the state, including in Milwaukee.

      Did the National Guard have enough people to fully staff all the polling places across the state, though? No. And even if it did, would that somehow magically have made it safe for people to undistance themselves to vote?

      1. You’re full of sh— There were NG personnel trained in polling procedures who were stationed in the Green Bay area that were idle. The NG did help out in other cities, but the mayor of Green Bay refused their help. It had nothing to do with safety. Keeping people around the 2 polling sites until midnight greatly increased the chances of infection. It would have been safer to have more sites and get people in and out quicker.

  8. My question is why did this case warrant Supreme Court review? The per curiam opinion makes no mention of a conflict in lower courts, and it affected something like 10-20 thousand votes in one state’s down-ballot races. Wouldn’t this have been an ideal time to say what the Court says in 99% of the cases presented to it?

  9. Quoting comments above, is it foreseeable that some who request absentee ballots might not “receive[d] them in time to mail them in time for the deadline for mailing them in” and that potential “voters who didn’t receive [ballots might be] disproportionately in Democratic counties”?

    “This was not an unexpected event. In other words, the Wisconsin legislature knew of the risk and expected Wisconsin citizens to make their own choices. That risk tolerance among many Americans has changed quite dramatically in 2020 compared to the past doesn’t change this otherwise logical decision.”

    In a federal election, can the Surgeon General close post roads as he sees fit, even if such post roads are necessary to process the mail-in ballots of those living in jurisdictions likely to vote for the opponent of Surgeon General’s boss? A foreseeable circumstance, to be sure… and is this a question which should be postponed until the election results are known?

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