The Volokh Conspiracy

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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.


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.