"I do not doubt the good faith of my colleagues[.]"
Justice Ruth Bader Ginsburg, dissenting in Republican
Nat'l Committee v. Democratic Nat'l Committee,
___ U.S. ___, ___ S. Ct. ___, No. 19A1016, 2020 WL 1672702, at *3 (April 6, 2020)
(Ginsburg, J., dissenting).
Put this in context. Wisconsin is holding a vote on Tuesday, April 7, 2020. Before the Covid-19 pandemic, Wisconsin law required that mail-in ballots must be postmarked by election day in order to be counted. But many Wisconsin voters still have not received mail-in ballots to mail in.
Wisconsin, like the rest of the country, is now in the midst of a pandemic. The evidence introduced in Federal Court shows that four days before the Supreme Court majority ruled, there were 1,550 confirmed cases and 24 deaths in Wisconsin as a result of Covid-19.
In response to the pandemic in Wisconsin, the Governor of Wisconsin issued a stay-at-home order and called the Wisconsin Legislature into special session to allow for more absentee ballots so that people would not have to congregate together in order to cast their votes in person. The Republican leaders of the Wisconsin House and Senate refused even to take the matter up for a vote in their legislature.
The Wisconsin Governor then issued another order, this one to cancel in-person voting on account of risks to public health. The Republican leaders of the Wisconsin House and Senate requested a stay from the Wisconsin Supreme Court so that voters in Wisconsin will be forced to make a choice: vote in person and risk infection, even death, or just stay home. They calculated that the Republicans on the Wisconsin ballot will stand a better chance of staying in power if Wisconsinites do not show up to vote.
The Republican majority of the Wisconsin Supreme Court agreed. They voted as if there is no pandemic, and Wisconsinites must vote in person or with the absentee ballot rules they already have, rules which, according to such as the Republican leaders of the house and senate on the Wisconsin ballot, favor the Republicans in Wisconsin.
On a parallel track at the same time, a Federal District Judge consolidated three cases, collectively aimed at extending the absentee ballot and at postponing in-person balloting during the pandemic. The District Judge declined to disturb Wisconsin's in-person voting requirements, but extended the time that voters would have to vote by mail and avoid Covid-19 under the circumstances.
Them that want low voter turnout appealed to the Seventh Circuit Court of Appeals. The defendant members of the Wisconsin Election Commission did not appeal the District Court's ruling.
However, the Republican National Committee intervened to appeal. The Seventh Circuit left the District Court's ruling intact.
Then the Republican National Committee appealed the case to the U.S. Supreme Court. That is where the extent of the Court's "good faith" was on display. In an unsigned opinion, five Justices refused to give their names but we know who they are: Chief Justice Roberts, and Justices Thomas, Alito, Gorsuch, and Kavanaugh.
They tried to rule anonymously that preexisting rules for absentee balloting in a pandemic are constitutionally required. They actually ruled despite the evidence in the record, as they have done before. "The Court's order requires absentee voters to postmark their ballots by election day, April 7 -- i.e., tomorrow -- even if they did not receive their ballots by that date. That is a novel requirement." Republican National Committee, 2020 WL 1672702, at *3 (April 6, 2020) (Ginsburg, J., dissenting).
This, then, is the background behind the ruling of the anonymous Gang of Five, Roberts, C.J., and Thomas, Alito, Gorsuch, and Kavanaugh, JJ. in favor of the Republican National Committee.
Please read the disclaimer. ©2020 Dennis J. Wall. All rights reserved.
Comments