As COVID-19 continues to kill thousands in the U.S., the fragility of the right to vote is finally getting the national attention it deserves.
Today, Wisconsin voters lined up in facemasks so their voices might be heard in a primary election that Democratic Gov. Tony Evers sought — in vain — to delay until June due to the viral pandemic. Fifteen other states already postponed theirs.
As of Tuesday afternoon, Wisconsin had 92 deaths and 2,578 reported coronavirus cases.
On the morning of the primary, Fox News reported “long lines forming as voting got underway,” with the National Guard handing out hand sanitizer and Wisconsin’s election commission urging folks to “‘keep your face-to-face interactions brief” because “[w]e want to limit the risk for everyone in the process on Election Day.’”
It doesn’t take a medical expert to conclude that voters who chose to exercise the franchise in Wisconsin on Tuesday could wind up infected. What’s lamentable is everyone was aware of this truth — the potential risk of showing up at the polls — going into the various legal challenges that were waged against the governor’s efforts to protect the public, including the U.S. Supreme Court.
In a 5-4 decision, a conservative majority reversed two lower court decisions that had extended the timeframe for returning absentee ballots to enable more Wisconsinites to safely vote from home.
In dissent, Justice Ruth Bader Ginsberg minced no words, noting that the majority’s “suggestion that the current situation is not ‘substantially different’ from ‘an ordinary election’ boggles the mind,” and that “[t]he concerns advanced by the Court . . . pale in comparison to the risk that tens of thousands of voters will be disenfranchised.”
As a legal matter, what is going on here? Here are a few takeaways:
First: The majority opinion — joined by all conservative justices but authored anonymously — correctly observed that, in general, the U.S. Constitution leaves voting procedures to the individual states, and that “[t]his Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”
Second: Nonetheless, the majority opinion was markedly devoid of justifying legal authority. The court struck down the lower courts’ order “allowing ballots to be mailed and postmarked after election day” — or until April 13. But it accepted “that the deadline for the municipal clerks to receive absentee ballots has been extended from Tuesday, April 7, to Monday, April 13.” Thus, the court only took issue with counting ballots received up until April 13 if those ballots were mailed after April 7.
The majority’s rationale for enforcing an April 7 cutoff for ballot mailing was exceedingly thin: “Extending the date by which ballots may be cast by voters — not just received by the municipal clerks but cast by voters — for an additional six days after the scheduled day fundamentally alters the nature of the election.”
The problem with this reasoning is the basic role of judges is to apply pre-existing law to new sets of facts. As conservative jurists and pundits routinely emphasize, it’s not the job of judges to make stuff up. Yet the majority cites no legal support for the “fundamentally alters the nature of the election” standard that it recites as its rationale for keeping people from voting absentee after April 7 but before April 13.
For the majority to make up that standard now is particularly troubling given the right to vote and the life-and-death implications of holding a primary in the midst of the COVID-19 pandemic. Moreover, oddly, when it refused in 2019 to take up the question of political gerrymandering, the same conservative justices in Rucho v. Common Cause cited the lack of pre-existing judicial standards as their primary reason for staying out of the electoral fray.
Third: Conservatives in Rucho made the global point that if elections in America are to be fixed, that has to happen through elections. The fix cannot come from the courts. But expecting people to choose between voting and possible death is not a fair choice under our system of laws. The decision today puts voters in a checkmate: They cannot go to the courts to remedy election deficiencies because they could be categorically turned away. But if they go to the physical polls in the coming months, they could become sickened and potentially die as a result.
Fourth: The Wisconsin debacle makes one thing crystal clear: In order to save American democracy and ensure an accountable government at the ballot box, Congress must act now to implement emergency mail-in voting and other necessary procedures for November. Sens. Amy Klobuchar (D-Minn.) and Ron Wyden (D-Ore.) have already proposed legislation, and House Speaker Nancy Pelosi (D-Calif.) has flagged the issue for future COVID-19 bills.
Perhaps most vitally, if Congress does manage to pass legislation to protect the precious right to vote in November’s federal elections — which the Constitution empowers it to do — the Supreme Court must stand down and let the will of the people govern. If it doesn’t, the court will have shredded whatever is left of its legitimacy as an institution.
Kimberly Wehle is a former assistant United States attorney and visiting professor at American University’s Washington College of Law. She is a CBS News legal analyst, a BBC News contributor, and the author of the book, “How to Read the Constitution and Why,” as well as the forthcoming “What You Need to Know About Voting and Why” due to be published in June.