Why the Supreme Court's contentious Wisconsin election ruling looks even worse now

Why the Supreme Court's contentious Wisconsin election ruling looks even worse now
Official White House Photo by D. Myles Cullen

When the Supreme Court inserted itself last week into the rulemaking of a Wisconsin election mere hours before voting was to begin, it ratcheted up the national and partisan stakes of the contest. Many, including Justice Ruth Bader Ginsburg, accused the conservative majority on the court of risking "massive disenfranchisement" by requiring all mail-in ballots to be sent by Election Day rather than allow a six-day extension, despite the chaos incited by the pandemic and fears that many voters wouldn't receive the ballots they properly requested in time.


Now, we have the results of that election — and in a crucial respect, the conservative majority's judgment looks even worse than it did when it was ordered.

For those Democrats and progressives who opposed the ruling, which was widely seen as facilitating the GOP-controlled state legislature's attempt to suppress the vote in its own partisan favor, the worst fears didn't come true. While the results of the election will likely face legal challenges, the initial outcome is a major win for Democrats in the state. In the most prominent race, the election of a state supreme court justice, the conservative incumbent Daniel Kelly suffered a resounding defeat. Jill Karosky, his liberal opponent, appears to have won by a large margin and will take his seat. Since the state supreme court can shape the electorate of Wisconsin, a key swing state in the presidential election, this event could have national consequences.

But even though the outcome of the election is one Democrats and progressives would favor, there's still plenty of reason for them to be outraged about the process. There seems to be little doubt that the GOP's insistence on holding the vote in the middle of a pandemic was a cynical voter suppression ploy, and even if it failed, it could have serious public health consequences if the virus spread at polling places. It likely many voters who would have liked to have cast ballots were too scared to leave their homes, and this disenfranchisement is regrettable, no matter which party benefited.

And the U.S. Supreme Court made likely made this worse. If voters didn't receive their mail-in ballots in time due to the pandemic-related delays, they may have decided — because the Supreme Court's truncated the deadline — to either risk exposure to COVID-19 by going to the polls or to forego voting altogether. And one of the reasons the court gave for enforcing this decision on voters now looks even less reasonable.

In its ruling, the conservative majority warned that the deadline extension for mail-in ballots, put in place by a lower district court, was "unusual."

"The unusual nature of the District Court's order allowing the ballots to be mailed and postmarked after election day is perhaps best demonstrated by the fact that the District Court had to issue a subsequent order enjoining the public release of any elections results for six days after election day," the unsigned opinion said. "It is highly questionable, moreover, that this attempt to suppress disclosure of the election results for six days after election day would work. And if any information were released during that time, that would gravely affect the integrity of the election process."

As I noted in my critique of the ruling last week, this was a somewhat understandable concern because it's generally accepted that election results should not be released while voting is still ongoing. However, I noted at the time that the court seemed to be exaggerating the importance of this consideration while ignoring the other concerns about the integrity of an election conducted during a raging pandemic.

But now, the election day has passed, and the six-day waiting period has passed. And we've seen that the order to keep the results of the vote secret for nearly a week did, in fact, work. We didn't find out the results until Monday, April 13, as had been ordered — meaning the only legitimate concern the Supreme Court majority had expressed in favor of its ruling looks less reasonable now. Had the election results been released prematurely, the court's majority surely would have felt some vindication. Now, though, it seems it may have underrated the chance that the results could be kept secret — the proposition was not so "highly questionable" after all. The major flaws in the election's integrity were the chaos of voting in a pandemic and the mess created in the absentee ballot process. The court's stated concerns — which many argued were a thin veil for a decision based in partisan interest — didn't come to fruition.

These mail-in ballot flaws, too, have been exacerbated by the Supreme Court majority's wording. It insisted that the ballots had to be “postmarked by election day, April 7, 2020, and received by April 13, 2020 at 4:00 p.m.” The problem is, many ballots appear to have been sent in by the deadline, but the postal service didn't postmark them at all. So even if the voter did everything right, a strict reading of the court's ruling would suggest that their vote shouldn't be counted. Disputes about this consideration are ongoing.

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