Sam Spital 
Director of Litigation

When Power is Divorced

from Rule of Law

The U.S. Supreme Court’s Wisconsin Election Decision Should Serve as a Warning to Us All

April 10, 2020

 As LDF’s President and Director-Counsel Sherrilyn Ifill stated in this powerful piece“We must never forget the images we saw in Wisconsin this week.”

Those images showed thousands of “mask-wearing Americans standing in staggered lines extended over city blocks” as they risked their safety to exercise their fundamental right to vote in the State’s spring election. These hazardous lines were concentrated in Milwaukee, which reduced its number of polling locations from 180 to 5 because of poll worker shortages. 

Unlike most of Wisconsin, Milwaukee has a large Black population, which meant African Americans were disproportionately forced to sacrifice their personal safety for the integrity of our democracy. Sadly, that story is all too familiar in our nation’s history.  


Why were voters forced to vote in-person during the COVID-19 pandemic?

The sacrifices Wisconsin voters made for our democracy were necessary because of decisions made by two Supreme Courts the day before the State’s April 7 election. First, the Wisconsin Supreme Court, by a 4-2 vote, blocked an executive order by Governor Tony Evers delaying the election to a later date. Second, the United States Supreme Court, by a vote of 5-4, blocked an order by a federal district court that would have allowed thousands of voters to vote by mail rather than in person, even if they did not receive their absentee ballots in time to postmark them by April 7. The latter decision not only risked “massive disenfranchisement,” as Justice Ginsburg explained in her dissent. It represented an exercise of judicial power, not rule-of-law-based decision-making.  



How did the Supreme Court justify this decision?

The rule of law requires courts to decide cases by identifying the relevant legal standard and then applying it to the facts before them.  In the Wisconsin case, the question before the Supreme Court was whether to block the federal district court’s decision requiring the State to count absentee ballots received within six days of the election, regardless of the postmark date. 

And the legal standard on that question is clear: the party making such a request must demonstrate, among other things, a sufficient likelihood that the district court abused its discretion in fashioning a remedy.

But the U.S. Supreme Court never even mentioned the relevant legal standard in the Wisconsin case, much less demonstrated a likelihood that the district court abused its discretion. How could it?  The district court’s remedy was entirely sensible. As Justice Ginsburg explained in her dissent, the pandemic led to a surge in absentee ballot requests, which overwhelmed state officials and caused a major backlog in sending ballots. As a result, “tens of thousands of voters who timely requested ballots [were] unlikely to receive them” by the election date.  The district court’s order was the only
remedy that would have allowed these citizens to vote without jeopardizing their safety.    

To justify its decision, the Court’s majority emphasized that the plaintiffs in the case had not requested this specific remedy in their initial motion for a preliminary injunction. The majority insisted this was “a critical point in this case.” But this was mere ipse dixit (it’s so because we say it’s so) from the Court. The Court cited no case, rule, or other legal authority in support of its reasoning. And, in fact, case law makes clear that district courts have broad authority to grant relief not specifically requested by a party. 

In any event, Justice Ginsburg pointed out that the “plaintiffs specifically requested this remedy at the preliminary-injunction hearing in view of the ever-increasing demand for absentee ballots.”

The majority simply ignored this point.

The majority’s other justification for blocking the district court’s order was that courts “should ordinarily not alter the election rules on the eve of an election.” But there was nothing ordinary about the conditions before the district court. In Justice Ginsburg’s words, “the District Court was reacting to a grave, rapidly developing public health crisis.” Indeed, it was undisputed that these extraordinary conditions justified altering the State’s election rules: no party challenged the portion of the district court’s order extending from April 7 to April 13 the date by which the State had to receive a voter’s absentee ballot for it to be counted. The effect of the Supreme Court’s ruling was that voters who did not receive ballots in time to mail them by April 7 would have to risk voting in person or be disenfranchised.  

In addition to putting voters at risk of contagion, how harmful is SCOTUS' decision?

The Supreme Court said nothing else to justify blocking this remedy chosen by the district court. Instead, it simply overrode a remedy it disagreed with. That is fundamentally inconsistent with the rules of judicial decision-making and appellate review.  As Justice Roberts emphasized in a 2009 case concerning an appellate court’s authority to grant a stay, Nken v. Holder, a motion for a stay is a motion “not to [a court’s] inclination, but to its judgment; and its judgment is to be guided by sound legal principles.”  And at the heart of those sound legal principles is the deference appellate courts owe district courts with respect to the choice of a remedy. As the Supreme Court stressed in Purcell v. Gonzalez, a 2006 case in which it overturned the Court of Appeals’ decision to override a district court decision denying an election-related injunction: “It was . . . necessary . . . for the Court of Appeals to give deference to the discretion of the District Court. We find no indication that it did so, and we conclude this was error.” The U.S. Supreme Court’s failure to apply the same principle to itself in the Wisconsin case is especially ironic, as Purcell is one of the few cases cited in the entire opinion.

In overriding the district court’s decision in the Wisconsin case, the majority of the Supreme Court harmed our constitutional democracy in two fundamental ways.  

First, as Justice Ginsburg explained, the majority required voters either “to brave the polls, endangering their own and others’ safety,” or to “lose their right to vote, through no fault of their own.” Second, the Court’s decision failed to respect the decision-making principles that ensure judicial opinions (whether we agree with them or not) are grounded in the judges’ application of law. When courts fail to respect those principles, power is divorced from the rule of law, threatening the integrity of our democracy.

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