Marc Elias of Perkins Coie, addresses media outside the U.S. Supreme Court after arguing two redistricting cases in December 2016. (Photo: Diego M. Radzinschi/ALM)

The 5-4 U.S. Supreme Court order Monday evening blocking a ruling that would have extended absentee voting in Wisconsin's Tuesday primary was swiftly assailed as a partisan decision that forces residents to choose between efforts to safeguard their lives amid the virus pandemic and the ability to exercise the right to vote.

The Supreme Court majority—Chief Justice John Roberts Jr. and Justices Brett Kavanaugh, Neil Gorsuch, Samuel Alito Jr. and Clarence Thomas—said the issue before the court was "a narrow, technical question about the absentee ballot process."

"By changing the election rules so close to the election date and by affording relief that the plaintiffs themselves did not ask for in their preliminary injunction motions, the district court contravened this Court's precedents and erred by ordering such relief," the majority wrote. "This court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election."

The majority said it would have preferred not to assert its voice in the election at the 11th hour "but when a lower court intervenes and alters the election rules so close to the election date, our precedents indicate that this court, as appropriate, should correct that error."

Justice Ruth Bader Ginsburg said in her dissent, joined by Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor: "The majority of this court declares that this case presents a 'narrow, technical question.' That is wrong. The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. 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."

Patrick Strawbridge of the Washington boutique Consovoy McCarthy filed the emergency action at the high court on behalf of the Republican National Committee. He was joined on the application with lawyers for the Wisconsin Legislature from Troutman Sanders and Husch Blackwell. They argued that the trial judge's order needed to be put on hold "in order to prevent further voter confusion and unjustified interruption of ongoing election processes."

Perkins Coie partner Marc Elias, for the Democratic National Committee, opposed the stay application. "The public interest will be best served by denying the stay, which will ensure that voters receiving their requested absentee ballots after election day because of delays in county clerks' offices resulting from the effects of the COVID-19 pandemic will not forfeit their votes," Elias told the justices.

Here's a roundup of some of the commentary about the court's order:

>> Marc Elias, Perkins Coie partner and chair of the firm's political law group: "This is a national disgrace. This may well cost lives." He added: "Beyond tomorrow's election—for which this decision is terrible—this is the key holding. The US Supreme Court, perhaps unintentionally, just endorsed a post marked by Election Day standard (rather than received by). This will enfranchise thousands of voters in November." [Twitter]

>> Jonathan Turley, professor at George Washington University Law School: "One can have a good-faith disagreement with the majority decision but this is not some raw partisan move—any more than the dissent was a raw partisan vote by liberal justices. There are fundamental questions here about the appropriate role of the courts, particularly when the legislature has made some accommodations while refusing others in light of the pandemic." [Jonathan Turley]

Sherrilyn Ifill testifying before the Senate Judiciary Committee. (Photo: Diego M. Radzinschi/ ALM)

>> Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund: "It is unconscionable. It is among the most cynical decisions I have read from this court—devoid of even the pretense of engaging with the reality that this decision will mean one of two things for many WI voters: either they will risk their health & lives to vote, or they will be disenfranchised." [Politico]

>> Dale Ho, director of ACLU's voting rights project: "There's no way to sugarcoat it: Tonight's SCOTUS decision re Wisconsin's election tomorrow is terrible. But voting rights advocates have to keep fighting to protect the right to vote during the pandemic." [Twitter]

>> Rick Hasen, professor at University of California, Irvine School of Law in Irvine: "[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." [Election Law Blog]

>> Vanita Gupta, president, Leadership Conference on Civil and Human Rights: "Many in WI haven't received mail-in ballots yet. So they must either risk their health by going to the polls tmrw or not vote. We need a democracy that works even during a public health crisis and a Supreme Court that doesn't  put voters in this position." [Twitter]

>> Marty Lederman of Georgetown University Law Center: "If I'm not mistaken, the Supreme Court just stayed a provision of a district court preliminary injunction that does not exist, and in so doing imposed a restraint on the franchise of Wisconsin voters that Wisconsin law itself doesn't require." [Balkinization]

>> Ed Whelan, president of Ethics and Public Policy Center: "Seems to me that if the political polarities were flipped—i.e., a close-to-election-day order by a district court fundamentally changing the rules in favor of Republican plaintiffs—the ruling to reverse would be 9-0. Is there evidence to the contrary?" [Twitter]

>> Leah Litman, law professor at the University of Michigan: "Some voters, it appears, are willing to risk their own death in order to ensure that American democracy still lives. But they should not have to make that choice." [The Atlantic]

>> Ned Foley, Ohio State University Moritz College of Law: "Last night's 5-4 SCOTUS ruling, as noted here, should make everyone realize need to prepare for risk of disputed election in November; what if presidency turns on kind of dispute like yesterday's in Wisconsin, over proper remedy for late absentee ballots." [Twitter]

 

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