Republican National Committee, etal. v. Democratic National Committee, et al. (2020)
Wisconsin’s primary election was scheduled for April 7, 2020, in the middle of a growing national public health crisis. In January 2020, a coronavirus (COVID-19) struck the United States, resulting in millions of infected persons and thousands of deaths. On March 24, the governor of Wisconsin issued a stay-at-home order until April 24 for the entire state. The governor’s stay-at-home order was issued barely two weeks before the primary election. Nonetheless, against the advice of medical experts, the governor of Wisconsin and the state’s legislature insisted on proceeding with an in-person vote.
The federal district court noted three potential consequences of the Wisconsin Legislature’s decision to proceed with an in-person election:
(1) A dramatic shortfall in the number of voters on election day as compared to recent primaries, even after accounting for the impressive increase in absentee voters, (2) a dramatic increase in the risk of cross-contamination of the coronavirus among in-person voters, poll workers and, ultimately, the general population in the state, or (3) a failure to achieve sufficient in-person voting to have a meaningful election and an increase in the spread of COVID-19.1
Through no fault of their own, Wisconsin voters were left with two choices—go to the polls in-person and risk being infected with a deadly virus, or don’t vote at all.
Not surprisingly, in the two weeks before the election, city clerks received a huge increase in requests for absentee ballots from voters wishing to avoid going out in public and standing in line to vote. The clerk in Madison estimated the requests were ten times the normal number. Due to a backlog of thousands of requests, the city clerks were unable to process and send out all of the absentee ballots in time. The Democratic National Committee and the Democratic Party of Wisconsin filed a motion with the District Court seeking to extend the statutory deadlines for absentee ballots. The District Court granted the injunction and extended the deadline for absentee ballots to April 13. It also ordered Wisconsin election officials to withhold the release of voting results until after that date. The District Court recognized that “the only role of a federal district court is to take steps that help avoid the impingement on citizens’ rights to exercise their voting franchise as protected by the United States Constitution and federal statutes.”2 The Wisconsin Election Commission did not challenge the District Court’s ruling, and the Seventh Circuit Court of Appeals allowed the order to stand. The Republican National Committee appealed to the U.S. Supreme Court.
On July 21, 2020, President Trump tweeted, “Mail-In Voting, unless changed by the courts, will lead to the most CORRUPT ELECTION in our Nation’s history! #RIGGEDELECTION.” This tweet was part of a year-long campaign by the president to discredit mail-in voting. He remained fixated on the idea that Democrats were trying to rig the 2020 election through mail-in voting.
The president’s paranoia seemed to have seeped into the minds of the Supreme Court justices. Without evidence, the justices argued that extending the time for voters in Wisconsin to submit their votes by mail was a threat to the integrity of the democratic process.3 They concluded that “extending the date by which ballots may be cast by voters . . . for an additional six days after the scheduled election day fundamentally alters the nature of the election.”4 The justices did not provide any further explanation.
The majority opinion mentioned the unusual nature of the District Court’s extension, without noting the unusual context of the order—a worldwide pandemic. Neither COVID-19 nor the circumstances of the District Court’s order were part of the majority’s analysis (COVID-19 was mentioned one time near the end of the opinion). The majority also failed to take account of the unusual circumstances that had already altered the nature of the election: (1) the governor’s March 24 stay-at-home order; (2) the inability of the state to process thousands of absentee ballot requests in time; (3) the refusal of the state to postpone the primary as many other states around the country had done; and finally (4) the threat of contracting a deadly virus while voting in-person, and subsequently spreading the virus to others. Recognizing the courts’ constitutional responsibility to protect every citizen’s right to vote, the District Court sought to alleviate these burdens by extending the postmark date for mail-in ballots by six days.
One of the majority’s concerns was that the six-day extension would lead to a premature release of results, which could affect the outcome of the election. However, as part of the District Court’s order, election officials were enjoined from publicly releasing any election results until April 13. The majority dismissed this order as inconsequential. They doubted the ability of election officials to withhold the release of results, even under a court order. The District Court, which was the fact-finding court, was convinced that election officials could withhold the results, but rather than risk the slight possibility that partial election results might leak to the public, the justices chose not to discern the voters’ intent at all. Instead of erring on the side of protecting voters, the majority chose voter suppression. As a result, thousands of Wisconsin voters were forced to risk their own health, and that of their families, friends, and coworkers in order to exercise their constitutional right.
It was at the urging of public officials that Wisconsinites turned to absentee ballots. There were approximately one million more requests for absentee ballots than in the 2016 primary. This created a serious backlog in the ballots being mailed to voters. As a result of the backlog, the existing deadlines unconstitutionally burdened the right of many Wisconsin citizens to vote. The majority’s decision required Wisconsin voters to postmark their ballots by election day, even though many had not received a ballot. Justice Ginsburg’s dissent took issue with this “eleventh hour” decision that was handed down one day before the Wisconsin primary election.5 After the District Court’s order, election officials spent days establishing new procedures and informing voters of the District Court’s extended deadline. All of that was upended at the last minute.
The majority’s reasoning didn’t take into account the severity of the COVID crisis. Justice Ginsburg declared, “The Court’s suggestion that the current situation is not ‘substantially different’ from ‘an ordinary election’ boggles the mind.”6 According to election officials, as of April 5, approximately 12,000 ballots had still not been mailed out. This was unprecedented for a state election. There was zero possibility that those voters would receive their ballot and submit it in time to have their vote counted. By adding six days, the District Court’s order alleviated the problem. The majority criticized the District Court for issuing its injunction so late in the process, yet they did the same thing. As Justice Ginsburg explained, “If proximity to the election counseled hesitation when the District Court acted several days ago, this Court’s intervention today—even closer to the election—is all the more inappropriate.”7
The dissent compared this case to voters waiting in line after the polls close. If a voter is already “in line” to receive an absentee ballot based on a timely submitted request, why shouldn’t the voter be able to cast his/her ballot? The majority’s concerns were minor compared to the risk of disenfranchising thousands of voters. In the end, Wisconsin voters were left with a choice between endangering their health and those around them, or not voting at all.
The Wisconsin cases were important precursors to the 2020 general election. They signaled to the states the U.S Supreme Court’s unwillingness to protect mail-in-voting for all citizens before the November election, even as the COVID-19 crisis spiraled out of control across the country over the summer. Despite the lack of credible evidence of mail-in voter fraud, the court permitted Republican lawmakers to use this as an excuse to suppress the vote. The COVID-19 virus imposed a burden on voters unlike anything seen in the last 100 years, and yet the court refused to protect the most fundamental of constitutional rights.
NOTES
1. Democratic Nat’l Committee v. Bostelmann, U.S. Dist. LEXIS 57918, 7 (W.D. Wis. 2020).
2. Bostelmann, U.S. Dist. LEXIS 57918 at 7–8.
3. Republican Nat’l Committee v. Democratic Nat’l Committee, 140 S. Ct. 1205 (2020).
4. Republican Nat’l Committee, 140 S. Ct. at 1207.
5. Id. at 1208.
6. Id. at 1210.
7. Id. at 1210–11.