“The question before the Court is a narrow, technical question.”
That’s the first tell. That’s the first signal that a grave injustice is about to be inflicted.
The phrase occurs early in the second paragraph of the U.S. Supreme Court’s unsigned majority ruling of April 6, in which the Court, by a 5–4 vote, likely disenfranchised tens of thousands of Wisconsin voters just before the April 7 election. In addition to being a presidential primary, that election was also determining races for more than 3,000 state and local offices, including a State Supreme Court seat. (In a major upset, announced Monday night, the liberal candidate, Jill Karofsky, won the Supreme Court seat, notwithstanding—or, perhaps, because of—the extraordinary circumstances of the election.)
Although that election has passed, the issues it presented, and how the majority justices responded to them, remain of urgent concern. What happened in Wisconsin was just a hint of the frantic, ongoing, nationwide struggle to overhaul our elections infrastructure so that it can function fairly during a pandemic. It’s not just about primaries; it’s about the November 3 general election. For even if the coronavirus recedes in the months ahead, voters’ fears will endure, and many medical experts predict a resurgence of the disease this fall.
This case was about how—and whether—we preserve democracy in the era of the coronavirus.
Duty Calls, They Said
No one likes to think of himself as intentionally committing a grave injustice—let alone a self-interested one. So the majority justices were telling the world—and, doubtless, themselves—that their hands were tied. They were mere technicians, doing their duty. The Republican-appointed justices had no choice but to rule for the Republican National Committee on these facts, they were saying.
The case arose because Wisconsin—unlike nearly a dozen other states, which had delayed their elections—was plowing forward with its primary in the teeth of the deadly coronavirus pandemic. Strikingly, the anonymous author of the majority ruling never used the word “pandemic” in his opinion. (The dissent, written by Justice Ruth Bader Ginsburg, used the word six times.) He mentioned “COVID-19” only once. (Ginsburg, five times.) Only Ginsburg mentioned “deaths.”
The majority justices were telling the world—and, doubtless, themselves—that their hands were tied.
The state’s Republican legislature declined to put off the election, despite Democratic governor Tony Evers’s urgings. (Later, when Evers tried to postpone it by executive order at the last minute, the Republican-controlled State Supreme Court struck down his decree.)
That’s why, on April 7, we saw that appalling spectacle of Wisconsin voters lined up for blocks, trying to space themselves six feet apart, and wearing a variety of makeshift cloth masks, paper masks, scarves, and even the occasional World War I–style gas mask.
Polls v. Quarantine
On March 24, Governor Evers issued a stay-at-home order. Voters began to fear going to the polls. So did poll workers. Many polling stations would have to close due to insufficient staff. (On Election Day, only 5 of 180 were open in Milwaukee.)
The novel coronavirus was starting to take its toll. On March 27, when the Democratic National Committee filed a court petition—a motion for preliminary injunction—seeking relaxation of certain election rules, there were more than 710 confirmed cases, with 12 deaths. Six days later, when U.S. District Judge William Conley ruled, the numbers had doubled, to 1,550 cases and 24 deaths.
By April 2, almost a million more voters had requested absentee ballots than four years earlier. In Milwaukee, which is almost 40 percent black, elections officials were seeing 10 times the requests they normally see. Statewide, there were shortages of ballot envelopes and staff.
Voters began to fear going to the polls. So did poll workers.
As voters turned en masse to the absentee-ballot option for the first time, they confronted unanticipated hurdles. First, they had to request a ballot—either online, by mail, fax, or in person—by April 2. But because of the digital divide and fear of leaving home, mail would be the default for many poor and black voters.
Next, they had to wait for the ballot to arrive in the mail.
Finally, they had to fill it out before a witness and put it back in the mail. To be counted, it had to be received by April 7.
The Postal Service typically advises absentee voters to allow two to three days for delivery—a week, to be safe. But the coronavirus was causing postal delays.
Deluged with last-minute ballot requests, elections officials fell behind in mailing out ballots. In Madison, for instance, there was a week-long delay. There was “no practical way” that someone requesting a ballot on April 2 would be able to fill it out and return it by Election Day, clerks for both Madison and Milwaukee told Judge Conley.
This “huge backlog in requests for absentee ballots” led Conley to issue an order, on April 2, changing certain rules. Conley mentioned the backlog in the first paragraph of his 53-page ruling (and six times thereafter). Yet the Supreme Court’s majority would later reverse his order without ever using the word “backlog” or any synonym.
Judge’s Orders
Here’s what Judge Conley ordered. First, he gave voters one extra day to request a ballot, until April 3. Second, he extended by six days the deadline by which ballots had to be received by election officials—from April 7 to April 13. (These changes were not appealed.)
Third, he let all ballots received as of April 13 be counted, regardless of their postmark date. That ensured that if a voter hadn’t received her requested ballot by April 7, but managed to fill it out and return it by April 13, it would still count.
The R.N.C. appealed that last part of Conley’s ruling, and that’s what the Supreme Court struck down. (We now know that among the ballots sent out, nearly 159,000 were not returned.)
Given that the majority did not regard either the pandemic or the backlog as worthy of mention, what was it, exactly, that the majority did find important?
The Supreme Court’s majority would later reverse Conley’s order without ever using the word “backlog” or any synonym.
Two factors proved decisive. The first was this:
“Importantly,” the justices wrote, “in their preliminary injunction motions, the plaintiffs themselves did not ask that the District Court allow ballots mailed and postmarked after election day, April 7, to be counted. That is a critical point in the case.”
So pivotal was this point, in fact, that the majority repeated it four more times: “The District Court unilaterally ordered [that relief].... The plaintiffs themselves did not see the need to ask for such relief.... [The district judge was] affording relief that the plaintiffs themselves did not ask for in their preliminary injunction motions.... The critical point [is] that the plaintiffs themselves did not ask for this additional relief in their preliminary injunction motions.”
But all these sentences were shamefully misleading. For while it was true that the plaintiffs didn’t originally ask for that relief in their written motions on March 27, at the hearing on April 1—with the fast-moving crisis evolving by the hour—the plaintiffs did ask for it orally. (In her dissent, Justice Ginsburg referenced the hearing-transcript pages where the request was made.)
So Judge Conley hadn’t “unilaterally” ordered anything. Nor had he “afford[ed] relief that the plaintiffs did not ask for.” It wasn’t true that “the plaintiffs themselves did not see the need to ask for such relief.” And the majority knew it. (The majority were Chief Justice John Roberts Jr., and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh.)
The other crucial factor, as the majority saw it, was that honoring absentee ballots that had been postmarked after Election Day would “fundamentally alter the nature of the election.”
In contrast, Justice Ginsburg did not regard the date of the postmarks as being so momentous. “If a voter already in line by the poll’s closing time can still vote,” she asked, “why should Wisconsin’s absentee voters, already in line to receive ballots, be denied the franchise?” (The majority never used the word “franchise” or “disenfranchise.”)
What Ginsburg found more important than either the date of the postmark or the date of the plaintiffs’ request for relief was that the existing deadlines for the handling of absentee ballots would “unconstitutionally burden Wisconsin citizens’ right to vote.” (The majority opinion did not mention the “right to vote.”)
Ginsburg concluded:
“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.... 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.”
“Health,” “safety,” “citizen,” and “Constitution” are still more words that do not appear in the majority ruling.
The Supreme Court’s chilling performance of April 6 is a grim harbinger of things to come.
Roger Parloff is a writer based in New York City
