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Wisconsin's Primary Was, Legally, A Mess. What Does It Mean For the Presidential Election?

With Bernie Sanders dropping out of the race, the Democratic primary is unofficially officially over. But elections are still scheduled in states across the country in the coming months, and state officials are ending up in court as they try to delay the votes due to COVID-19.

Courts have, so far, denied requests to delay in-person elections. Authorities in Ohio got around that by having public health officials declare an emergency to stop the primary, but those in Wisconsin this week weren't so lucky. And what happened there is already telling us a whole lot about not only the issues judges could face in future election challenges, but what the U.S. Supreme Court could do if more 2020 voting cases land before them—including any over the November election.

A quick recap: In Wisconsin, the fight over this past Tuesday's primary election played out in both state and federal courts. Democratic Gov. Tony Evers, who initially speculated that he didn't have the authority to unilaterally reschedule the election, changed his mind and issued an executive order Monday to push the primary until June. The state Supreme Court—which is elected with a current 5-2 conservative majority—split along party lines 4-2 to rule for Republicans who challenged the order. One conservative justice recused, as he's running for reelection.

Hours later, the U.S. Supreme Court handed down its first COVID-19-related order. In another partisan split, the court's conservative majority signed onto a per curiam ruling that overturned a district court decision that extended the date that absentee ballots could be postmarked in order to be counted.

The unsigned majority opinion characterized the ruling as a narrow finding about the absentee ballots, saying the lower court's order that extended "the date by which ballots may be cast by voters—not just received by the municipal clerks but cast by voters—for an additional six days after the scheduled election day fundamentally alters the nature of the election." They also pointed to the "Purcell" doctrine, which says courts should not make last-minute changes to elections.

But the court's liberal bloc lambasted that decision in the dissent authored by Justice Ruth Bader Ginsburg. Joined by the other three liberal justices, Ginsburg wrote of Wisconsin voters: "Either they will have to brave the polls, endangering their own and others' safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance—to the constitutional rights of Wisconsin's citizens, the integrity of the state's election process, and in this most extraordinary time, the health of the nation."

The court's majority made clear that Monday's opinion is not to be interpreted for all pandemic-related cases: "The court's decision on the narrow question before the court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate. That point cannot be stressed enough."

Still, it sets the stage for how the conservative justices, including two of Trump's nominees, could rule in similar future cases: With deference to the Purcell doctrine and an eye toward avoiding making drastic changes to elections.

Wisconsin is already setting off concerns about future elections, especially November's general election. With so much uncertainty about whether the pandemic could affect voters seven months from now, advocates are urging state officials to take action that would allow Americans to cast their ballots safely, like expanded early voting and mail-in ballots.

The mail-in ballots have already come under attack by President Donald Trump, who mailed in a ballot himself to vote in Florida earlier this month. He claimed, without evidence, there could be massive fraud using those ballots (sound familiar yet?) and using that system could hurt Republicans in upcoming elections.

Five states—Colorado, Hawaii, Oregon, Washington and Utah—all mail ballots to residents ahead of elections, and offer in-person voting options as well. There's also been federal legislation introduced by Democratic Sens. Ron Wyden and Amy Klobuchar that would, in the case of a quarter of states declaring a state of emergency over COVID-19, require all states to give voters the option to mail in or drop off a paper ballot. But with Congress being Congress, that's unlikely to happen.

During a call with reporters Thursday, Paul Smith, vice president for the Campaign Legal Center and former general counsel during John McCain's presidential bids, said the Supreme Court's ruling doesn't do much to affect future races where voters could turn in absentee ballots.

But, Smith added, he "would not be surprised at all" if lawsuits were filed to try and force states' hands in expanding voting options, with the argument that the election is not free and available to the people. "Whether it'll work is a different question," he said.

Jonathan Diaz, a voting rights legal counsel with CLC, also predicted there could be legal challenges to requirements that some states currently have in place for absentee ballots, like requiring a witness be present in order for a ballot to be validated. With many senior citizens living in isolation during the pandemic, having another person available may not be an option.

The outcome of the general election has massive implications for the composition of the Supreme Court itself: Justices Ginsburg, 87, and Stephen Breyer, 81, both members of the court's liberal arm, are at or past the typical retirement age from the bench. That means whoever wins come November could have the option to fill at least one, if not both, of those seats.

If Trump wins, that will shift the court even further to the right. But if Biden takes over, he'll have a chance to tap a liberal (albeit, probably a moderate one) justice for the bench.

What We're Reading

>> Trump and Family Can't Force Arbitration in Fraud Suit, SDNY Judge Rules: "The lawsuit, filed in October 2018, alleged that Trump had lent his name to promote a number of businesses, knowing there was little to no chance that the money unsavvy investors paid to participate in seminars and training opportunities would ever be recouped….While the agreements at issue did not include Trump, his children or the Trump Corp., Trump's Spears & Imes attorneys said that his ties to ACN made it clear that the contractual obligations governing arbitration would extend to the defendants. But Schofield on Wednesday said that argument essentially 'turns the amended complaint on its head.'" [New York Law Journal]

>> 'Extraordinarily Disturbing': Former Watchdogs Sound Off on Trump's Denigration of Inspectors General: "Michael Bromwich, a Steptoe & Johnson senior counsel who preceded Fine as the Justice Department's inspector general, said Trump has consistently shown "no interest, appetite or respect" for oversight, whether from Congress or independent watchdogs within the executive branch….'So what this is is a fundamental attack on IGs and on the independence of IGs and on their ability to conduct independent oversight. So it's not just one IG. Atkinson is not just another IG,' Bromwich said, referring to the intelligence community inspector general who was removed last week." [National Law Journal]

>> Texas can enforce abortion ban during coronavirus pandemic, federal appeals court rules: "Overturning the decision of a lower court, a three-judge panel on the politically conservative U.S. 5th Circuit Court of Appeals ruled Tuesday that the state may continue to prohibit all abortions except those for patients whose pregnancies threaten their lives or health — a restriction GOP state officials have insisted is necessary for preserving scarce hospital resources for COVID-19 patients." [Texas Tribune]

>> Trump's DC Circuit Appointees Rule in Favor of Administration's Federal Execution Policies: "The U.S. Court of Appeals for the D.C. Circuit threw out a district court's preliminary injunction Tuesday that blocked the Trump administration's recent efforts to reinstate the federal death penalty. Judges Neomi Rao and Gregory Katsas, both appointed to the bench by President Donald Trump, wrote concurring opinions in favor of vacating the injunction. Judge David Tatel, a Clinton appointee, dissented." [National Law Journal]

>> Recovery law allows Fed to rope off public as it spends billions: "Tucked into the recent recovery bill was a provision granting the Federal Reserve the right to set up a $450 billion bailout plan without following key provisions of the federal open meetings law, including announcing its meetings or keeping most records about them, according to a POLITICO review of the legislation. The provision further calls into question the transparency and oversight for the biggest bailout law ever passed by Congress…'This is written too broadly and allows the Federal Reserve to avoid its responsibilities of public disclosure as the courts have described them,' [media attorney Charles] Glasser said." [Politico]

>> 'A Very Bad Sign for November': Supreme Court Is Assailed for Wisconsin Ballot Ruling: "'[I]t is a very bad sign for November that the court could not come together and find some form of compromise here in the midst of a global pandemic unlike anything we have seen in our lifetimes. Like the Wisconsin Supreme Court, the U.S. Supreme Court divided along partisan and ideological lines.'" [National Law Journal]

That's all folks! Thanks for reading, I'll be back next week with more Trump Watch.