The Supreme Court just met its first test of the coronavirus era. It failed, spectacularly.
I was hoping not to have to write those sentences. All day Monday, I kept refreshing my computer’s link to the court’s website.
I was anxious to see how the justices would respond to the urgent request from the Republican National Committee and Wisconsin’s Republican-controlled Legislature to stop the state from counting absentee ballots postmarked not by Tuesday’s election but during the following few days.
A federal district judge, noting that Wisconsin’s election apparatus was overwhelmed by the “avalanche of absentee ballots” sought by voters afraid to show up at crowded polling places, had ordered the extra time last Thursday, with the full support of the state’s election officials. Was I the only one left in suspense on Monday, holding out hope that the five Republican-appointed Supreme Court justices would put partisanship aside and let the District Court order stand?
In early evening, the answer landed with a thud. No, they would not.
In more than four decades of studying and writing about the Supreme Court, I’ve seen a lot (and yes, I’m thinking of Bush v. Gore). But I’ve rarely seen a development as disheartening as this one: a squirrelly, intellectually dishonest lecture in the form of an unsigned majority opinion, addressed to the four dissenting justices (Need I name them? Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan), about how “this court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”
Let’s think about that. “Ordinarily not alter”?
There are quite a few things that should not ordinarily be happening these days. People shouldn’t ordinarily be afraid of catching a deadly virus when exercising their right to vote. Half the poll-worker shifts in the city of Madison are not ordinarily vacant, abandoned by a work force composed mostly of people at high risk because of their age.
Milwaukee voters are not ordinarily reduced to using only five polling places. Typically, 180 are open. (Some poll workers who did show up on Tuesday wore hazmat suits. Many voters, forced to stand in line for hours, wore masks.) And the number of requests for absentee ballots in Milwaukee doesn’t ordinarily grow by a factor of 10, leading to a huge backlog for processing and mailing.
I wonder how Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh understand the word “ordinarily.” And I wonder why the opinion was issued per curiam — “by the court.” Did none of the five have the nerve to take ownership by signing his name?
That the dispute that reached the Supreme Court was the result of intense partisan rancor in a state with a history of Republican-devised voter suppression should have been reason enough for the conservative bloc to stay its hand. Instead, it seems to have been catnip: The Wisconsin Republicans, after all, needed the Supreme Court’s help if they were to keep voter participation as low as possible.
As the pandemic crisis mounted and other states started postponing their elections, Wisconsin’s Republican-gerrymandered State Legislature blocked efforts by Gov. Tony Evers, a Democrat, to go to all-mail balloting or to defer the election until June. This was an important election, including not only the Democratic presidential primary but also a highly charged state Supreme Court election, plus elections for 139 other judicial offices and more than 3,000 local positions. The stymied Democrats eventually went to court, seeking an order to postpone the election or, failing that, at least grant relief to those absentee voters who could not possibly get their ballots in on time.
In his ruling last Thursday, the District Court judge, William Conley, declined to take what he called “the extraordinary step of delaying a statewide election at the last minute.” Nonetheless, he said, he was persuaded that “the asserted harm is imminent and a timely resolution is necessary if there is any hope of vindicating the voting rights of Wisconsin citizens.”
Tens of thousands of voters who requested their ballots on time faced little prospect of even receiving them until after Election Day. Consequently, Judge Conley ruled, ballots did not have to be postmarked by Election Day. As long as election officials received a ballot by the afternoon of Monday, April 13, six days after the election, it would still count, no matter the postmark. (In a subsequent order, Judge Conley barred release of the election returns until that date so that late absentee voters would be as ignorant of the outcome as those who cast their ballots on Election Day.)
In fashioning his order, Judge Conley noted that the head of the Wisconsin Election Commission had assured the court that moving the deadline “will not impact the ability to complete the canvass in a timely manner.” He also observed that “the amicus briefs from various local governments suggest that an extension of the deadline would be heartily welcomed by many local officials.” The United States Court of Appeals for the Seventh Circuit denied the Republicans’ request for a stay. The urgent appeal to the Supreme Court followed.
I’ve described the reasoning in the judge’s 53-page opinion in this detail because anyone reading only the Supreme Court’s majority opinion would come away thinking that the order was the act of a rogue judge, cramming an extreme remedy for a nonexistent problem down the throat of a resistant public. There is barely a hint in the opinion of the turmoil in the country. Did it not occur to these justices to wonder why they were working at home rather than in their chambers? It was left to Justice Ginsburg in her dissenting opinion to point out that “the District Court was reacting to a grave, rapidly developing public health crisis.”
While the rest of us are obsessed with the dimensions of that crisis, the justices in Monday’s majority were for some strange reason obsessed with the notion that the Democratic plaintiffs had not asked the judge for the precise remedy he ordered; the opinion mentions this on each of its four pages. But as the plaintiffs told the justices in their brief, and as Justice Ginsburg concluded from reading the transcript of the District Court hearing, that wasn’t true. The plaintiffs “specifically requested that remedy at the preliminary-injunction hearing in view of the ever-increasing demand for absentee ballots,” she wrote.
The other three dissenting justices all signed Justice Ginsburg’s opinion; she spoke for them all. Her final paragraph is worth quoting in full:
“The majority of the court declares that this case presents a ‘narrow, technical question.’ That is wrong. The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. Under the District Court’s order, they would be able to do so. Even if they receive their absentee ballot in the days immediately following Election Day, they could return it. With the majority’s stay in place, that will not be possible. Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance — to 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.”
My point is not that the mess in Wisconsin, on full display on Tuesday night’s newscasts, was the Supreme Court’s fault; most of it wasn’t. It’s that five justices were unwilling to do what they could to help. Instead, they intervened, with 12 hours to go before the polls opened, to upend the common-sense solution that a federal judge had devised with the support of the officials who actually had to carry out the election. (President Trump has been candid about his reason for disliking mail-in ballots. They have “tremendous potential for voter fraud and for whatever reason don’t work out well for Republicans,” he tweeted Tuesday as disarray escalated in Wisconsin.).
The court’s behavior this week raises the question whether the empowered conservative majority has the situational awareness to navigate the dire situation that faces the country, and whether it can avoid further displays of raw partisanship that threaten to inflict lasting institutional damage on the court itself. It’s a moment that calls on everyone in a position of power to display vision and a generosity of spirit. I’m not using the word “leadership,” which I would apply to the elected branches of government, because we don’t necessarily want the Supreme Court to lead us. But we certainly don’t want it to get in the way.
As we see not only from the Wisconsin Republicans but from the governors who are cynically and shamelessly using the pandemic as a cover for banning abortion, there are those who will exploit a crisis, even this one, for crass political gain. The American public may well be divided on what it wants from the Supreme Court, but I’m naïve enough to suppose that at least it expects the court not to ally itself with the exploiters.
In her speech last week to the British people, Queen Elizabeth II expressed the hope that “in the years to come, everyone will be able to take pride in how they responded to this crisis.” That goes for the Supreme Court too: History will judge us all. The Supreme Court this week failed not only the voters of Wisconsin. It failed all of us.
Help
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