Yesterday’s Supreme Court Order in Wisconsin Election Case Reveals Divide Between Chief and Other Conservative Justices

Over the dissent of the three liberal justices, the Supreme Court yesterday evening denied an application to vacate the Seventh Circuit’s stay of a federal district court order that would have extended Wisconsin’s deadline for receipt of absentee ballots by six days. Chief Justice Roberts, Justice Gorsuch (joined by Justice Kavanaugh), and Justice Kavanaugh each wrote concurring opinions, and Justice Kagan, joined by Justice Breyer and Justice Sotomayor, wrote a dissent.

The opinions of the Chief Justice, on the one hand, and of Justice Gorsuch and Justice Kavanaugh, on the other, highlight an important divide—a divide that explains why the Court last week denied, by an evenly divided vote, an application for a stay of a Pennsylvania supreme court ruling that overrode a statutory deadline for the receipt of mail-in ballots. For the Chief, what was critical in the Wisconsin case is that it was a federal court that overrode a state law:

While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes. Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin.

For Gorsuch and Kavanaugh, by contrast, the Constitution limits intrusions by both federal and state judges on state election statutes. Gorsuch writes: “The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules. Art. I, §4, cl. 1.” Kavanaugh develops this point more fully in a long footnote. An excerpt:

A federal court’s alteration of state election laws such as Wisconsin’s differs in some respects from a state court’s (or state agency’s) alteration of state election laws. That said, under the U. S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections. Article II expressly provides that the rules for Presidential elections are established by the States “in such Manner as the Legislature thereof may direct.” §1, cl. 2 (emphasis added). The text of Article II means that “the clearly expressed intent of the legislature must prevail” and that a state court may not depart from the state election code enacted by the legislature. Bush v. Gore, 531 U. S. 98, 120 (2000) (Rehnquist, C. J., concurring); see Bush v. Palm Beach County Canvassing Bd., 531 U. S. 70, 76–78 (2000) (per curiam); McPherson v. Blacker, 146 U. S. 1, 25 (1892).

Justice Barrett might soon be in a position to cast a fifth vote for Gorsuch’s and Kavanaugh’s position.

On the particular issue at stake in yesterday’s case, here’s an excerpt from Justice Gorsuch’s concurrence:

Weeks before a national election, a Federal District Judge decreed that Wisconsin law violates the Constitution by requiring absentee voters to return their ballots no later than election day. The court issued its ruling even though over 30 States have long enforced the very same absentee voting deadline—and for understandable reasons: Elections must end sometime, a single deadline supplies clear notice, and requiring ballots be in by election day puts all voters on the same footing….

Why did the district court seek to scuttle such a long-settled tradition in this area? COVID. Because of the current pandemic, the court suggested, it was free to substitute its own election deadline for the State’s. Never mind that, in response to the pandemic, the Wisconsin Elections Commission decided to mail registered voters an absentee ballot application and return envelope over the summer, so no one had to ask for one. Never mind that voters have also been free to seek and return absentee ballots since September. Never mind that voters may return their ballots not only by mail but also by bringing them to a county clerk’s office, or various “no touch” drop boxes staged locally, or certain polling places on election day. Never mind that those unable to vote on election day have still other options in Wisconsin, like voting in-person during a 2-week voting period before election day. And never mind that the court itself found the pandemic posed an insufficient threat to the health and safety of voters to justify revamping the State’s in-person election procedures.

So it’s indisputable that Wisconsin has made considerable efforts to accommodate early voting and respond to COVID. The district court’s only possible complaint is that the State hasn’t done enough. But how much is enough? If Wisconsin’s statutory absentee voting deadline can be discarded on the strength of the State’s status as a COVID “hotspot,” what about the identical deadlines in 30 other States? How much of a “hotspot” must a State (or maybe some sliver of it) be before judges get to improvise? Then there’s the question what these new ad hoc deadlines should be. The judge in this case tacked 6 days onto the State’s election deadline, but what about 3 or 7 or 10, and what’s to stop different judges choosing (as they surely would) different deadlines in different jurisdictions? A widely shared state policy seeking to make election day real would give way to a Babel of decrees. And what’s to stop courts from tinkering with in-person voting rules too? This judge declined to go that far, but the plaintiffs thought he should have, and it’s not hard to imagine other judges accepting invitations to unfurl the precinct maps and decide whether States should add polling places, revise their hours, rearrange the voting booths within them, or maybe even supplement existing social distancing, hand washing, and ventilation protocols.