We Can't Rely on the Supreme Court to Guard the 2020 Election

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(Bloomberg Opinion) -- The Supreme Court’s decision in the Wisconsin election case isn’t exactly the shot heard round the world. In a narrow, 5 to 4 decision, the court’s conservatives held that a federal district court shouldn’t have granted a coronavirus-inspired emergency extension for mailing in absentee ballots.

But the Supreme Court’s ruling nevertheless matters a lot. It’s the opening salvo in what is likely to be a seven-month long series of legal battles about how the 2020 elections will be accomplished with Covid-19 disrupting the voting process.

So it’s highly unfortunate that the justices split along partisan lines in this first case, a case with relatively low stakes. The nation badly needs the court to avoid a scenario reminiscent of the 2000 Bush v. Gore case, in which the justices were perceived to have decided the election for Bush along roughly ideological lines.

The takeaway for states, and for democracy, is clear: Plan now, plan well, and don’t rely on the courts to resolve controversial questions about mail-in voting and deadlines — especially at the last minute.

The Supreme Court’s involvement in the Wisconsin election mess arose against the backdrop of an explicitly partisan struggle in Wisconsin over whether polling would take place on April 7 as scheduled. With the coronavirus on people’s minds, roughly a million more voters requested absentee ballots than have done so in comparable prior elections. Many of these requests came very close to election day, leaving very little time for the absentee ballots to be sent out to voters, filled out and returned on time.

The best thing for the Supreme Court would have been for the state to resolve these issues on its own, without the intervention of the federal courts. On Thursday, April 2, however, with no state resolution yet in view, a federal district court judge in Wisconsin decided to extend the deadline for the state to receive absentee ballots. He ruled that the state should count ballots received by April 13, regardless of whether they were postmarked on or by April 7, election day. In an attempt to protect the election from gamesmanship in the days after April 7, the judge also ordered to election officials not to release any results until April 13.

The decision by the district court made it almost certain that Wisconsin Republicans would go to the U.S. Supreme Court to get the ruling reversed. That eventuality was almost avoided when, on Monday, April 6, Wisconsin’s Democratic governor issued an executive order postponing the whole election until June 6. But that same day, the Wisconsin Supreme Court overturned the governor’s order by a 4-2 vote. That set the stage for the U.S. Supreme Court to consider the absentee ballot extension.

The unsigned opinion for the court’s five conservative justices did not rely on any constitutional principles. Indeed, in four pages, it cited just one short string of cases as standing for the proposition “that lower federal courts should ordinarily not alter the election rules on the eve of an election.”

The basic thrust of the majority opinion was simply to say that extending the deadline was a bad idea. The court emphasized that initially, the state’s Democrats hadn’t even asked for the extension in their written application to the judge. And the court questioned whether it would have worked to order state election officials not to disclose any results before April 13.

In an attempt to avoid a political interpretation of the decision, the majority also said that it could not be “stressed enough” that the decision was not “expressing an opinion on the broader questions of whether to hold the election, or whether other reforms or modifications in election procedures in light of Covid-19 are appropriate.”

In contrast, the dissent by the court’s four liberals, written by Justice Ruth Bader Ginsburg, denied that the issue was narrow or technical as the majority claimed. Rather, Ginsburg wrote, “the question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic.”

In carefully chosen but nonetheless personal terms, she wrote that “while I do not doubt the good faith of my colleagues the Court’s order, I fear, will result in massive disenfranchisement.”

Ginsburg was making an effort not to polarize the court too much, too soon. But she and the other liberals were also putting down a marker, suggesting to the conservatives that they are not likely to compromise and give them cover in future 2020 election-related cases.

The 5 to 4 split inevitably raises the specter of Bush v. Gore, a decision that badly undercut the court’s perceived legitimacy as a fair arbiter of elections. One unfortunate result of that case was that it sent a message to all Americans that, if the chips were down, the Supreme Court would resolve electoral confusion one way or the other. That in turn encourages Democrats and Republicans alike to think that the courts are a useful tool for solving electoral showdowns.

Yet it would be an enormous mistake to think that the Supreme Court as currently constituted could be relied on for a dispassionate resolution of cases that might determine the outcome of the November 2020 election. Given the likely effects of the pandemic on that election, there exists a substantial likelihood that both political parties will be poised to question the fairness of the election results.

The only way to avoid a potentially serious legitimacy crisis is not to rely on the Supreme Court to resolve it. States need to put electoral processes in place early so that the rules are clear in advance. And we should avoid the temptation, however powerful, to expect the courts to tweak those rules to make them more “fair,” as measured by our own lights.

Democracy is ultimately about the people making decisions, not the courts. The rules of democracy, unfortunately, aren’t always objective, especially in crisis conditions. The courts are likely going to play a role in the battles that are coming. Let’s hope that role isn’t too big or too central.

This column does not necessarily reflect the opinion of Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

©2020 Bloomberg L.P.

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