On Tuesday, April 7, Wisconsin held a primary election despite the fact that state residents were under an order of the governor to stay home in order to slow the spread of COVID-19. As a likely result, more people will become infected and die than would have if the state had delayed the primary (as other states have) or had done more to facilitate voting by mail. As with so many other aspects of the catastrophically bungled U.S. response to the coronavirus, many actors contributed to this terrible decision.
The Wisconsin legislature—controlled by Republicans thanks to aggressive partisan gerrymandering—bears the brunt of the blame. It refused to delay the primary, partly due to Trump-inspired denial and also in an apparent effort to aid the state supreme court re-election campaign of a Republican loyalist who would likely cast a vote to preserve the GOP gerrymander.
So too, Wisconsin’s Democratic governor, Tony Evers, bears some responsibility for dithering when he should have taken decisive action to postpone the election. Evers did finally act to postpone the election, only to be thwarted by the Republican majority on the state supreme court, which ruled that he lacked the authority to take this step on his own.
Meanwhile, the state received an overwhelming flood of last-minute applications for absentee ballots from Wisconsinites understandably wary of risking their lives to cast a vote in person. As a consequence, many voters did not even receive their blank ballots in time to cast them. Accordingly, a federal district judge ordered the state to extend the time for mailing in completed absentee ballots. Yet that measure was also thwarted—this time by a 5-4 majority of the U.S. Supreme Court, also splitting on partisan lines.
The Wisconsin saga is extremely disturbing, and not only because of the lives that will unnecessarily be lost. Although reasonable people can disagree about exactly how to organize life in response to the pandemic, there is no reason for those disagreements to break down on partisan lines.
Nor is this a case of both-sides-equally-to-blame polarization. Yes, Democrat Evers acted too slowly. But overall, the pattern we see in the Wisconsin case is one in which Democrats put voting rights and the public safety first, while Republicans put partisan advantage first.
Why? Part of the answer is dispiritingly familiar. As the nation’s demographics have been shifting towards Democratic-leaning constituencies, Republicans have sought partisan advantage through voter suppression measures like strict voter identification requirements, limited early voting, and other mechanisms that ostensibly target the pseudo-problem of individual voter fraud. Seen in this perspective, requiring voters to risk their lives to cast votes is simply a more macabre version of a tried and tested GOP strategy.
Do partisan politics also explain the division in the U.S. Supreme Court? They certainly appear to. Given the way in which divisions among the justices regarding the regulation of the electoral system clearly reflect their partisan affiliations, it would take a particularly naïve observer to deny that politics in the crass sense plays a substantial role. But the Court’s breakdown in the Wisconsin case—Republican National Committee (RNC) v. Democratic National Committee (DNC)—may also reflect a general difference in judicial philosophy.
Partisan politics are hardest to deny or downplay when the justices vote against type. Thus, twenty years ago, in Bush v. Gore, it was particularly jarring to see the conservative majority abandon conservative principles by extolling the unenumerated right to vote while overriding a state court’s interpretation of its own law. That about-face strongly supported the inference that the justices were picking a presidential candidate, not upholding a principle of law that they generally supported.
The ideological valence in RNC v. DNC is less clearly scrambled because the Republican majority appealed to a principle that conservatives on the Court hold dear in other circumstances as well. Lamentably, however, that principle is a kind of fetishistic attachment to rules.
The Purcell Principle
RNC v. DNC raised one basic question in the U.S. Supreme Court: Did the federal district court have the authority to order Wisconsin officials to extend the deadline for voters to mail completed absentee ballots beyond April 7, so long as election officials received those ballots by April 13?
As an initial matter, it does not appear that Wisconsin law even contained a postmark-by requirement, as Justice Ruth Bader Ginsburg wrote for the dissenters and as Professor Martin Lederman explained at greater length in a blog post. But even assuming Wisconsin law can be construed as entailing such a requirement, it is worth noting that the district court order superseding it was quite modest. It typically takes the U.S. Postal Service about two days to deliver mail, so as a practical matter ballots would have needed to be mailed by April 11 to meet the April 13 receipt deadline. Thus, the contest in the Supreme Court was over an extension of just four days. Those days were important to voters, however, because with coronavirus spread peaking in the days leading up to the election, thousands of Wisconsin voters would not—and ultimately did not—receive blank ballots by April 7.
Why did the Supreme Court majority conclude that the district court overstepped its authority by extending the mailing deadline? The unsigned majority opinion invoked the principle—previously articulated in a number of cases but most closely associated with Purcell v. Gonzalez in 2006—that, as the majority put it in RNC v. DNC, “lower federal courts should ordinarily not alter the election rules on the eve of an election.”
That statement was tendentious and inaccurate. Nowhere in Purcell did the Supreme Court state that only lower federal courts should leave existing rules in place on the eve of an election. Rather, the Purcell Court was concerned about the fact that “Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion.” As the dissent noted, the majority’s ruling in RNC v. DNC itself could be said to violate the Purcell principle. After all, Justice Ginsburg explained, Wisconsin officials had been preparing to comply with the district court’s order, so it was the Supreme Court’s own eleventh-hour action that would “confound election officials and voters.”
Moreover, even if, for the sake of argument, we accept the majority’s dubious assertion that the Purcell principle applies only to lower courts, the majority’s own statement of that principle should have undermined its application to the Wisconsin case. The majority stated that under Purcell such courts should not ordinarily alter election rules on the eve of an election. Yet there was nothing ordinary about the circumstances of the case. Ordinarily, there is no substantial health risk from standing less than six feet away from one’s fellow citizens. Ordinarily, one need not wear a mask and gloves when venturing out of one’s home to purchase groceries.
Are the justices unaware that we live in extraordinary times? Hardly. As reflected in a press release issued just three days before the RNC v. DNC opinion, in light of the public health emergency, they are “teleworking” and have indefinitely delayed March and April oral arguments. To think that the Purcell principle controlled in RNC v. DNC thus takes a special kind of obtuseness.
Waiver
The unsigned majority opinion also erred badly in another respect. It asserted “the critical point that the plaintiffs themselves did not ask for” an extended mailing deadline “in their preliminary injunction motions.”
Why is that a critical point? No general principle of law forbids a court from granting a plaintiff a remedy the plaintiff did not specifically request. On the contrary, unless limited by statute (and there is no such limit here), federal courts have broad discretion to grant effective remedies for violations of constitutional and other rights.
Moreover, the majority was wrong about what the plaintiffs sought. The dissent observed that “although initially silent, the plaintiffs specifically requested” the extended mailing deadline as a “remedy at the preliminary-injunction hearing in view of the ever-increasing demand for absentee ballots.”
Indeed, even that statement arguably conceded too much to the majority. The plaintiffs’ original complaint, filed on March 18, listed seven items in the “prayer for relief.” The last of these was “such other relief as the Court deems just and proper.” That request was repeated in other pleadings filed on March 26. Thus, although the plaintiffs did not specifically ask for the mailing deadline (if there even were one) to be extended, their filings clearly encompassed that form of relief. The majority’s waiver argument was as misplaced as its reliance on the Purcell principle.
Petty Sticklerism
The weakness of the Court’s arguments in RNC v. DNC tends to confirm the suspicion that something else—namely, partisan politics—explains the result. And to repeat, one would need to be especially naïve to think that partisanship played no role, not even a subconscious one. However, other factors may also be at play. Thus, the Cato Institute’s Ilya Shapiro opined that “Republican-appointed judges tend to want to apply the law as written, while Democrat-appointed ones want to see ‘justice’ done, even if it means bending the rules.”
Shapiro is right that ideological priors, and not just partisan affiliation, can explain some of the division in RNC v. DNC, but he is unfair to the Democratic appointees; they seek to apply the rules in light of all the relevant circumstances, not bend the rules. Conversely, Shapiro is far too generous to the Court’s Republican appointees in characterizing them as simply applying the rules. A more accurate description would be that they are petty sticklers.
Consider the law governing habeas corpus—the procedure by which prisoners challenge the legality of their custody. For decades, the Court has strictly enforced deadlines and erected procedural barriers to the filing of even meritorious habeas claims. For example, failure to comply with a state procedural rule—even if the failure is entirely due to actions by a prisoner’s lawyer—will typically forfeit a constitutional claim.
Numerous examples of the Court’s conservative wing’s petty sticklerism could be cited, but no case better epitomizes it than the 2007 ruling in Bowles v. Russell. In that case, a habeas petitioner complied with a filing deadline given to him by the federal district judge, but, through no fault of the petitioner, the judge had miscalculated the deadline and given him three extra days. In an opinion by Justice Clarence Thomas, the Court’s conservative wing said that the earlier statutory deadline was “jurisdictional” and thus could not be extended. The majority ruled that the petitioner’s appeal had to be dismissed.
For the four dissenters, Justice David Souter explained that the Court’s approach was not just cruel but misguided. Congress had not expressly provided that the relevant deadline was absolute. Thus, Justice Souter wrote: “It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch.”
Perhaps cases like Bowles show that the Republican appointees on the Supreme Court were driven by longstanding principle rather than by pure partisan politics in RNC v. DNC. If so, however, that hardly makes them praiseworthy. A commitment to wooden and heartless interpretation of rules is never a commendable principle, but especially not when it leads to a ruling that citizens must risk their lives in order to vote.
