The Supreme Court’s Wisconsin Decision Is a Terrible Sign for November

Voters line up at Riverside High School for Wisconsin's primary election Tuesday April 7, 2020, in Milwaukee.

Voters line up at Riverside High School for Wisconsin's primary election Tuesday April 7, 2020, in Milwaukee. AP Photo

 

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COMMENTARY | The justices are forcing citizens to choose between voting and staying safe from the coronavirus. This fall’s election could be no different.

Lines outside of Wisconsin polling places illustrate the cruel stakes of a decision the Supreme Court handed down Monday night. The Court forced Wisconsin residents to choose between voting and staying safe. Some voters, it appears, are willing to risk their own death in order to ensure that American democracy still lives.

But they should not have to make that choice. The five conservative justices on the Supreme Court forced them to. In a 5–4 decision, the Court rolled back an absentee-ballot extension that would have given voters an extra week to submit ballots by mail. The decision is an ominous sign about what the Court will allow elected officials to get away with during the coronavirus outbreak, even at great harm to our representative democracy.

The election happening Tuesday includes the Democratic presidential primary in addition to races for an important seat on the Wisconsin Supreme Court and other state and local judgeships. Voters, understandably, want to have a say in who fills these seats. But Wisconsin, like the rest of the United States, is staring down the threat of the coronavirus. And the state is subject to a stay-at-home order to minimize the spread of the virus and to prevent its health-care system from being overwhelmed.

It’s obvious how voting in public amid a pandemic is not compatible with safety. The federal government’s health experts have recommended that people stay home and keep their distance from one another. Voters would have to disregard that lifesaving guidance in order to cast their vote. That is why experts and advocates have strongly recommended that the United States move to a system of voting by mail for the upcoming general election. Doing so would ensure that people can exercise their franchise and that America remains a representative democracy without threatening millions of lives.

That’s precisely what Wisconsin voters were given: more time to secure absentee ballots and more time to send them in. The governor ordered residents to stay at home only as recently as March 24, and many voters who requested their ballots at that point did not anticipate receiving them in time to return them for Tuesday’s election, because the state recently received an extraordinary number of absentee-ballot requests. Some of these voters filed a lawsuit, and successfully obtained a federal court order allowing residents to cast absentee ballots as long as the ballots were postmarked by April 13—a one-week extension.

On Monday, the U.S. Supreme Court overturned that order, and as a result, officials are now requiring any absentee ballots to be postmarked by today, April 7. Voters without absentee ballots therefore have a choice: Don’t vote, or risk your life in order to do so.

The Court did little to explain its decision. It first maintained that the residents never requested the extension (though the dissent referenced a portion of the case transcript in which they did). The Court then cited a prior decision, Purcell v. Gonzalez, that reasoned that courts should be reticent to disturb election procedures close to the date of an election. But that principle is based on the idea that elections should not be riddled with last-minute chaos. It is hardly applicable to the circumstances that the country is facing now—namely, an election that is already riddled with the sweeping, last-minute chaos resulting from the coronavirus.

Who will benefit from the Court’s decision and who will be hurt—and possibly killed—by it is entirely predictable. The Court’s decision will depress voter turnout in the all-important judicial elections. The president recently said out loud what Republican voting strategists have long seemed to believe: Lower voter turnout benefits Republicans. With higher levels of voting, as Trump put it, “you’d never have a Republican elected in this country again.”

The Court’s decision particularly gives African American voters, the historic backbone of the Democratic Party, a life-and-death choice. Wisconsin has more than 2,500 coronavirus cases, and some populous cities (of more than 70,000 residents) have only one polling location. And early data show that African Americans die of the coronavirus at a higher rate than whites—perhaps because of racial disparities in the health-care system or socioeconomic disparities that prohibit poorer communities from taking various preventive measures. The area in Wisconsin with the largest black population (Milwaukee) now has only five polling places (whereas it normally has 180).

The Court’s decision is an ominous harbinger for what the Court might allow in November in the general election. Imagine, for example, that states do not allow absentee voting or voting by mail even though the coronavirus remains a serious threat to public health. Imagine also that the president, continuing to minimize the threat posed by the virus, tells his supporters that they should go out and vote anyway. Monday’s decision suggests that the Supreme Court wouldn’t care.

The Court’s indifference to Wisconsin voters is brazenly ironic. Before it issued the Wisconsin order, the Court indefinitely postponed all of the cases that were originally scheduled to be heard in March or April of this year, including a major argument over whether the House of Representatives can subpoena the president’s financial records. In the order explaining its decision to delay the hearings, the Court cited the historic and unprecedented nature of the coronavirus and the threat it poses. But while the Court is more than happy to make accommodations for the sake of the health of its own justices and members of the Supreme Court bar, it refuses to do the same for voters who are merely trying to participate in democracy.

The Court’s Monday-night order offers a window into the Court’s thinking. The conservative majority went out of its way to say that the dissenting justices’ “rhetoric” was “quite wrong.” While a pandemic threatens our elections, in other words, the majority took time to criticize the tone that the dissent used. The Court’s conservatives disliked the dissenters’ pointing out (quite rightly) that the question in the case is “whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic,” an issue that is of “utmost importance” to, among other things, “the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation.”

The Court’s insistence that the dissent adopt a more measured tone is an appalling exercise of the Court’s authority. The Court demanded respect and deference even though it does not deserve them: Nothing is respectable about giving cover to elected officials to suppress voting in the midst of a pandemic.

Leah Litman is an assistant professor of law at the University of Michigan Law School.

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