The 10-page limited opinion released Monday evening underscored the Court’s ideological and partisan divide. The inability of judges to speak with one voice on such serious issues as the coronavirus pandemic and voting rights has raised concerns about the legal battles that are bound to proliferate before the fall elections.
“It is a very bad sign for November that the court cannot meet and find a form of compromise here in the middle of a global pandemic unlike anything we have seen in our lifetime”, Richard Hasen, expert in electoral law at the University of California at Irvine, wrote on his blog Election Law.
The reaction was predictable. “The United States Supreme Court overturned the Democrats’ illegal and desperate attempts to extend voting after election day,” said a press release from the Republican State Leadership Committee. “Another great victory for democracy – and fair elections. “
The left anger was palpable.
“With this outrageous decision, the far-right majority of the Supreme Court has put not only their thumbs, but their whole fists, on the scale in favor of making it more difficult for people to vote,” said in a speech. People for the American Way vice president, Marge Baker. declaration. “. . . If there was any lingering doubt that the Republican goals of suppressing voters were aided and abetted by the courts and through far-right judicial appointments, it was suppressed tonight. “
The Supreme Court’s decision to suspend decisions of the lower courts that extended the absentee vote for a week comes in an election in which the most notable race is the battle of a conservative Republican to retain his seat in the supreme court of the elected state.
President Trump tweeted Tuesday morning: “Vote today, Tuesday, for the highly respected Republican, Justice Daniel Kelly. Tough on Crime, love your military, veterinarians, farmers, and will save your 2nd amendment. ”
The five conservatives of the United States Supreme Court, all appointed by the Republican presidents, sided with the Republicans while the four Liberals, appointed by the Democrats, sided with the Democrats.
The majority’s insistence that normal election rules and precedents be respected comes from the fact that the court itself postponed two months of oral argument, for fear that the majestic courtroom would not take place to bring together hundreds of people during the coronavirus epidemic.
The judges even distanced themselves from each other, holding their private meeting to discuss court cases by teleconference.
By contrast, Wisconsin voters who have not yet voted by mail “will have to brave the election, endangering their own safety and that of others,” wrote judge Ruth Bader Ginsburg in her dissent. “Or they will lose their right to vote, without it being their fault.”
Despite the partisan stakes, the judges did not seem to make much effort to denounce their disagreements. “Although I do not doubt the good faith of my colleagues, the court order will, I fear, result in massive deprivation of rights,” wrote Ginsburg, who was joined by judges Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
The majority opinion – a four-page unsigned document on behalf of Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh – said the dissent “entirely erroneous on several points” and described the issue before the court as “a narrow technical question regarding the postal voting process”.
It is true that the court was put in a difficult position because of the political dysfunction of Wisconsin. State Governor Tony Evers (D) first insisted that the primary should continue, unlike other state governors worried about the pandemic. When he changed his mind, state Republican legislative leaders even refused to consider the possibility – one of the leaders previously discussed the election date which would help Kelly’s chances.
At the end of last week, US district judge William Conley gave the Democrats what the majority of the Supreme Court called “extraordinary” relief – that election officials should count postal ballots until the 13 April, even if they were tabled after Tuesday. A panel of the United States Court of Appeal for the 7th circuit has confirmed.
The majority of the Supreme Court disagreed. “Extending the date on which ballots can be cast by voters – not only received by city clerks but cast by voters – another six days after scheduled polling day fundamentally changes the nature of elections,” wrote conservatives.
Clerks may count postal ballots received before April 13, according to the notice, but must be canceled by April 7.
Ginsburg has questioned such a rule. She said testimony has shown that some who asked for mail-in ballots will not receive them until Tuesday and therefore have no way of meeting the court deadline.
“If an elector already online before the polling station closes can still vote, why would electors absent from Wisconsin, already in line to receive the ballots, be denied the franchise?” ” she wrote.
The issue before the Supreme Court concerned only decisions of lower federal courts to extend postal voting, not the last minute decision of the Wisconsin Supreme Court – it also came in partisan fashion – that Evers did not had no power to postpone the vote.
The decision of the United States Supreme Court was only reluctantly made after that, around 7 p.m. the day before the elections.
This is unlikely to be the last time that the judges, who received the case on Saturday, are called to the last minute.
One point, the majority opinion said, “cannot be emphasized enough. “
The decision “should not be taken as an opinion on the broader question of whether to hold the election, or whether other reforms or modifications to the electoral procedures in light of COVID-19 are appropriate.”