The April 7th election in the U.S. state of Wisconsin shocked democracies everywhere. Harrowing footage of voters invoked notions of fear and injustice as elderly and disabled were shown waiting in in lines amidst this international health crisis. Even more, individuals were only able to vote at five (of what had been thirty-four) polling stations. Between the sundry news articles berating the caprice of Governor Evers (D) or the otherwise intransigent conservative majority in the State Legislature, the media appeared to blame on partisan lines, intimating that the panic and chaos was indeed the malevolent construction or selfishness of the ‘other.’ The event will likely cause many infections with the Covid-19 virus and even subsequent deaths, but the issue is not, nor is it ever, so black and white. It is a common misconception that effects imply intention. The night before the election, the Supreme Court handed down a decision which denied a delay to absentee submissions. Such a strange circumstance, and indeed so hotly criticized, warrants a clean and clear exposition. This judicial decision, and its predecessors, really only prevented the safety of voting from home. This safety, however, appeared to be guaranteed.
It is no question that Wisconsin should have delayed its election weeks in advance of this “second Tuesday” catastrophe. Fifteen states already pushed primaries. Partisan cooperation in the state had actually been steadily improving, as noted with pleasure by local newspapers. This cooperation now appears to have been tenuously held by the governor’s consistent agreement to maintain the election at its scheduled date. It was only until Governor Ever attempted to push the election with the (now overturned) executive order #74that reignited antipathy.
As the virus worsened it became pertinent to push the election, so the governor issued an order pushing the election to June. This order, however, was challenged. The time, place, and manner for federal elections is delegated specifically to state legislatures (Article 1.4 of the U.S. Constitution), and the State Supreme Court overruled him ensuring the election continued.
Let us examine the facts surrounding this election before we assess its legal minutiae. In U.S. constitutional law, voting is a fundamental right.[1]Whether enshrined in the very definition of Democratic-Republics or the Constitution itself, “[c]onfidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.”[2]This includes suffrage for all citizens, limited election interference, and a commensurability of election standards for the electorate.
The above quote from Purcell v. Gonzalez[3]is the operative precedent which justified the US Supreme Court in its decision, RNC v. DNC,[4]on the eve of the Wisconsin Election. Here, the Supreme Court rejected a lower court decisionthat extended both the cutoff date that absentee ballots could be requested by voters and subsequently received by the state afterthe election. The lower decision was predicated on evidence suggesting the state could not fulfill absentee ballot requests before the election. It was expected that many ballots would be received by voters after the election itself.
This was a problem long before any urgent concern preceding the election. Absentee standards had been maintained even through the state of emergency. Meagan Wolfe, a Wisconsin Election Commission (WEC) Administrator, kept true to regulatory statutes (and the government’s position) by saying to her workers, “[r]egular voters should only be sent an official, or full, ballot by the 21-day deadline on March 17.” This policy, however, was changed by the aforementioned District Court case, formerly DNC v. RNC (now RNC v. DNC), that “extend[ed] the deadline for receipt of absentee ballot requests by mail, fax or email (and if deemed administratively feasible in the sole discretion of the WEC Administrator,online) to 5:00 p.m. on April 3, 2020.”[5]It is in this part of the order that blamecould be placed, but not really.
The feasibility of this ballot request deadline was not questioned by the Wisconsin government because it was expected from the order that absentee ballots could be received by voters after election day. It should be known that there had been significant delays with postal travel reported anyway; the ‘no timestamp’ stipulation of the district court order would still lead to undelivered ballots and/or unreceived votes by the April 13thdeadline. This timestamp delay, however, was line-item struck by the Supreme Court as violative of Purcell v.Gonzalez. While the extended request day for absentee voting was dangerously close to the election, it would be unfair to both the Wisconsin Government and the District Court to argue they were responsible for the late ballots that may have disproportionately forced one to vote in person. Perhaps the government or the WEC Administrators expected such a result but knew more people would nevertheless be able to vote absentee. Wisconsin received an unprecedented 1.2 million requests for absentee voting due to the pandemic, and the state fulfilled almost all of them.
The District Court case, DNC v. RNC, was appealed and affirmed in part by the 7thCircuit Court. It was again appealed and accepted by the Supreme Court. The per curiumopinion of the Court was unequivocal: the concern before them was “a narrow, technical question about the absentee ballot process… whether absentee ballots now must be mailed and postmarked by election day, Tuesday, April 7, as state law would necessarily require, or instead may be mailed and postmarked after election day, so long as they are received by Monday, April 13.” The court predominantly relied on Purcell (otherwise known as the “Purcell Principle”) in its holding.
The Purcell Principle states that courts are prohibited from issuing orders which change election rules imminently before an election (imminently being understood as several weeks or less). It is enforced to avoid voter confusion and chaos for election officials. Given Wisconsin had two instances of court decisions modifying election law preceding an election, Purcellbecame relevant. The dissent, in RNC v. DNC, argued that the per curiam opinion itself was violating the precedent by abrogating the district court decision, now widely promulgated to both voters and poll workers as the law. Here lies the legal circumstance which should draw our attention.
In many ways this case was simple. Specific thigs were requested in the original case that do not include the status of the election or Covid-19 exceptions. Formally, the DNC did not request a timestamp exception (which is normally required by law). For this reason, the per curiam opinion argued plainly that the district court provided “extraordinary relief” that allowed “voting for six additional days.”[6]The dissent, however, suggested that it was not so simple.
Purcell, the relevant precedent,is one of several cases that concern late changes to election proceedings by judges (generally centering around voter identification). The Purcell Principle is actually designed to obviate “conflicting orders” that “can themselves result in voter confusion and consequent incentive to remain away from the polls.”[7]While logically sound, the above conclusion naturally seems to include the Supreme Court in such decisions. Broadened too much, however, and the managerial power of this precedent for the Court would be prevented by this case itself .
When handing down the Purcell decision, the Court did, indeed, create a conflicting order. To both create and enforce this holding, the Court presumed it was practically immune from violating Purcell.Thus, the Purcell Principle is unquestionably active for those lower courts with original jurisdiction in these election-proximate cases. The Supreme Court, however, must take the risk of conflicting with disseminated orders for the sake of preserving institutional integrity and consistency. The legitimacy of this claim, of course, is somewhat subjective. The media has scrutinized the proximity from which the Courts (especially the Supreme Court) interfered. While RNC v. DNCwas handed down by the Supreme Court the day before the Wisconsin election, the Court was obliged by the necessity to respond to the petition.
The dissent argues that even if the opinion of the District Court was wrong, it becomes legitimateby its temporal inculcation with the electorate; “For this Court to upend the process [of adjusting to the District Court]—a day before the April 7 postmark deadline—is sure to confound election officials and voters.”[8]The per curiamargues differently: there is “no probative evidence” that “these voters here would be in a substantially different position from late-requesting voters in other Wisconsin elections with respect to the timing of their receipt of absentee ballots.”[9]Late requesting, according to the per curiam opinion, always runs the risk of ballots not arriving on time. Indeed, the per curiamopinion defends itself saying, “the dissent’s rhetoric is entirely misplaced and completely overlooks the fact that the deadline for receiving ballots was already extended to accommodate Wisconsin voters, from April 7 to April 13.”[10]Thus, the gravity of any undelivered ballots is lessened. Certainly, dramatized language like “disenfranchisement” was of this mentioned rhetoric: untrue and partly misleading. Voters were not disenfranchised, they were unfairly denied the safety of voting from home. To the majority, the loss of this luxury was considered more temperate than the unjustified and excessive relief given by the District Court.
Purcell concerned Arizona Proposition 200 that required voter identification at polls, something designed prima facieto fulfill the state constitutional requirement of Article Seven Section Twelve, “to secure the purity of elections and guard against abuses of the elective franchise.” In Purcell, Justice Stevens warned against two unsubstantiated problems with the per curiam opinion.
“At least two important factual issues remain largely unresolved: the scope of the disenfranchisement that the novel identification requirements will produce, and the prevalence and character of the fraudulent practices that allegedly justify those requirements.”[11]
Indeed, RNC v. DNC is not dissimilar to this. While the per curiamopinion in RNC concerned a “narrow technical question,” Stevens’s claim in Purcell rings true underneath. It must be unclear to the justices whether the subsequent danger presented to the voters who did not receive their ballots (as discussed above) is worse than the “extraordinary relief” of effectively stretching the election day by another week for voters.[12]It is ultimately a question of proportionality, whether recalcitrant judges (by providing unasked relief) and election security is more important than the absentee ballots of thousands of unlucky voters who took a risk by applying late for a dangerously extended deadline.
While I agree with the proportionality posed by the dissent (that “[e]nsuring an opportunity for the people of Wisconsin to exercise their votes should be [the] paramount concern”), the deadline extensions presented a false assurance that some voters could request ballots later than prudenceadvises. Purcellmust still be invoked by the Supreme Court at various times. The substance of such invocations will be valued differently and probably disputed. If Purcellremains misunderstood it will be used to challenge the legitimacy of the Court to perform all future managerial functions in this area.[13]
The orders considered did not actually disenfranchise these individuals. It only precluded the safety of voting from home. Many made the difficult and understandable decision of not voting, and that choice should not have had to be made, especially considering most did not need to. Blame itself is hard, if not impossible, to place. Unhappy circumstances of authority and emergency often lead to an unhappy populace, just look to the senatus consultum ultimumthat ended the Roman republic.
[1]Dunn v. Blumstein, 405 U.S. 330, (1972).
[2]Purcell v. Gonzalez, 549 U.S. 1, 4, (2006).
[3]Id.
[4]Republican Nat’l Comm. v. Democratic Nat’l Comm., No. 19A1016, 2020 WL 1672702 (U.S. Apr. 6, 2020).
[5]20-cv-249-wmc, 5 (Lower court decision, April 2); Emphasis mine.
[6]Republican Nat’l Comm. v. Democratic Nat’l Comm., No. 19A1016, 2020 WL 1672702, at 4.
[7]Purcell v. Gonzalez, 549 U.S. 1, 4–5, (2006).
[8]Republican Nat’l Comm. v. Democratic Nat’l Comm., No. 19A1016, 2020 WL 1672702, at 5 (U.S. Apr. 6, 2020).
[9]Id., at 2.
[10]Id.,at 2.
[11]Purcell v. Gonzalez,549 U.S. 1, 6 (2006).
[12]Republican Nat’l Comm. v. Democratic Nat’l Comm., No. 19A1016, 2020 WL 1672702, at 2 (U.S. Apr. 6, 2020).
[13]Id.,at 4.