As we make our way to the polls, either in-person or via mail, we need to remember that in addition to sending elected officials to Washington, D.C., we are voting for governors, state legislators, mayors and, in some states, judges. We don’t talk about it nearly often enough, but our votes in these races are just as important as the ones we cast in the presidential race. The Supreme Court’s decision Monday night in a case involving Wisconsin’s election drives home the importance of these down-ballot races, especially those for state legislative seats.
Voters should make sure that the people they elect to their state legislatures will protect their right to vote. This Supreme Court will not, and it has become far less likely to permit the lower federal courts to do so, either.
The court, especially following the confirmation of its newest justice, Amy Coney Barrett, seems increasingly likely to defer to state legislatures decisions regarding what protections their state constitutions provide — or don’t — to voters, even in the middle of a crisis like the current pandemic.
In Wisconsin, the issue involved extending the period for mail-in ballots to be received past Election Day. With more people relying on mail-in ballots given the risks of in-person voting, Wisconsin residents, like so many U.S. voters, worried their absentee ballots wouldn’t be counted if they voted by mail because of Covid-19-related delays in both the delivery and processing of their ballots. So, Democrats asked a federal judge to permit ballots to be counted as long as they were postmarked by Nov. 3 and received within the following six days.
The judge authorized the extension, but the 7th U.S. Circuit Court of Appeals reversed the district court’s decision, ruling that ballots had to be received by Election Day in order to count. Democrats petitioned the Supreme Court to hear the case. Although the Supreme Court declined to take the case, Chief Justice John Roberts and Justices Neil Gorsuch, and Brett Kavanaugh each wrote to explain why they would permit the decision that ballots must be received by Election Day to stand. Justice Elena Kagan dissented, joined by Justices Stephen Breyer and Sonia Sotomayor, to explain that the Constitution required the federal courts to step in and protect the rights of voters during the pandemic.
According to Kagan’s dissent, with the pandemic worsening in Wisconsin, about half of the state’s voters had applied for mail-in ballots and more were expected to do so before the Oct. 29 deadline. The district judge found that the surge in demand and “unusual postal delays” meant many voters who fully complied with the rules wouldn’t receive their ballots in the mail by Election Day, let alone in time to return them. As Kagan pointed out, this meant as many as 100,000 votes would not count without additional time.
The conservative justices were willing to set aside the exigencies of the pandemic to avoid, in the words of Roberts, “federal intrusion on state lawmaking processes.” Kavanaugh noted that “it is one thing for state legislatures to alter their own election rules in the late innings and to bear the responsibility for any unintended consequences. It is quite another thing for a federal district court to swoop in and alter carefully considered and democratically enacted state election rules when an election is imminent.”
Even though the Wisconsin Legislature, which has barely met since the start of the pandemic, has not considered whether the threat posed by Covid-19 warrants changes to its election procedures, Kavanaugh argued “the Constitution principally entrusts politically accountable state legislatures, not unelected federal judges, with the responsibility to address the health and safety of the people during the Covid-19 pandemic.” Kavanaugh had previously noted that when state officials craft a response to problems “fraught with medical and scientific uncertainty,” the court should give “especially broad” latitude to their decisions in an Oct. 5 ruling in a South Carolina case. In that case, the court left in place a requirement that voters have a witness certify each absentee ballot, despite the burden that imposed on those most at risk in the middle of the pandemic. Kavanaugh added that decisions made by state legislators should not be “subject to second guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the public.”
One can only wonder what Kavanaugh’s brothers and sisters on the bench, who routinely decide complex cases that require them to render decisions based on the testimony of expert witnesses, must make of his lack of confidence in their abilities. Regardless, there is no doubt that under this view, federal judges are largely out of the business of protecting the right to vote.
Kagan’s dissent had the better of the argument, reflecting the need for federal courts to engage in limited intervention to protect the right to vote, as was the case in Wisconsin, where a narrow remedy was tailored to address problems that arose due to the pandemic. Gorsuch had expressed concern that “last-minute changes to longstanding election rules risk … inviting confusion and chaos and eroding public confidence in electoral outcomes.” Kagan responded, “It is hard to see how the extension of a ballot-receipt deadline could confuse citizens about how to vote: At worst, a voter not informed of the new deadline would (if she could) put her ballot in the mail a few days earlier than needed.” And while Kavanaugh speculated some would be “suspicious of impropriety” if ballots that came in after Election Day reversed the fortunes of an early leader in the results, Kagan pointed out there were “no results to ‘flip’ until all valid votes are counted.”
Kavanaugh’s view likely represents where the Supreme Court is headed, not because it is right, but because it is where the votes are on the court. This approach would vest broad power in state legislatures and make the views of the people who hold those offices all the more critical to the future of the right to vote. Before the court refused to extend the period for Wisconsin ballots to be received, the Supreme Court reinstated state laws in Alabama and South Carolina requiring witness signatures on absentee ballots, rules that lower federal courts had rescinded during the pandemic. This is why now, more than ever, it is incumbent upon voters to take the down-ballot races seriously and educate themselves about the views of state and local candidates on election law.
Since the 1965 Voting Rights Act was enacted, the federal courts have extended protection to many previously disenfranchised voters. We all know far too well what happened before those protections existed. Under Kavanaugh’s “heads we win, tails you lose” rules for voters, progress will recede. Any voter who wishes to retain their voting rights would do well to heed the Wisconsin ruling for the warning that it is and make sure they focus on electing state and local officials who are committed to protecting the right to vote.