A federal appeals court effectively disenfranchised thousands of Wisconsin voters in an appalling 2–1 decision on Thursday that swept away vital safeguards to protect voting rights during the pandemic. In a terse six-page opinion, the majority did not even consider Wisconsinites’ constitutional rights, but simply deferred to Republican legislators, who are fighting tooth and nail to throw out mail-in ballots. This cavalier attitude drew a sharp rebuke from Judge Ilana Rovner, whose 25-page dissent shredded the majority’s complicity in mass voter suppression. Her opinion doubled as a bracing criticism of the Supreme Court’s recent, disastrous election law decisions.
Wisconsin is currently a COVID-19 hot spot. Cases have surged across the state and hospitals are quickly reaching maximum capacity. Although Wisconsin allows no-excuse absentee voting, its election infrastructure was not designed to handle the unprecedented surge in absentee ballot requests due to the pandemic. During the state’s chaotic April election, several cities shuttered almost all of their polling places—leading to hourslong lines at the few remaining polls—and municipal clerks failed to send out thousands of absentee ballots in time. The state’s Legislature, which is dominated by Republicans due to an extreme partisan gerrymander, refused to change the law to prevent another meltdown in November. The Wisconsin Election Commission’s Republican members also blocked reforms to ease the burden on voters.
On Sept. 21, U.S. District Judge William M. Conley ruled that the maintenance of this status quo unconstitutionally infringed on the right to vote. He issued an order to ease certain restrictions to address new challenges posed by the pandemic. Most importantly, Conley extended the deadline to register by mail or online from Oct. 14 to Oct. 21. He also ordered the state to count absentee ballots postmarked by Nov. 3 and received by Nov. 9. And he allowed residents to work at polls outside their county of residence. (An arbitrary state law bars poll workers from staffing any site outside their county.) These modifications protected voters who receive a late absentee ballot while reducing the odds of endless lines at the polls on Election Day.
Republican legislators appealed, and on Thursday, the 7th U.S. Circuit Court of Appeals reversed Conley’s decision. The majority, composed of Judges Frank Easterbrook and Amy St. Eve, did not even ask whether Wisconsin had infringed on citizens’ constitutional right to vote. Instead, it cited a string of recent orders from the Supreme Court knocking down judicial efforts to protect the franchise. “The district court acted too close to the election,” the majority declared, and wrongly “assumed that the design of [election] adjustments during a pandemic is a judicial task.” Courts must defer to the Legislature, the majority concluded, and respect “political officials’ choices about how to deal with the pandemic.” Wisconsinites deprived of their fundamental rights by legislative inaction are out of luck.
If the plaintiffs appeal Thursday’s decision to the Supreme Court, they will probably get a similar answer. SCOTUS is antagonistic toward voting rights and reversed a similar order in April that would have required election officials to count late absentee ballots.
In a deeply pained and eloquent dissent, Judge Ilana Rovner bemoaned her colleagues’ indifference to the real issue in this litigation: a looming bureaucratic nightmare that will deny citizens the right to vote through no fault of their own. “In the United States of America, a beacon of liberty founded on the right of the people to rule themselves, no citizen should have to choose between her health and her right to vote,” Rovner began. Yet the majority’s decision “confronts Wisconsin voters with that very choice.” She continued:
At a time when judicial intervention is most needed to protect the fundamental right of Wisconsin citizens to choose their elected representatives, the court declares itself powerless to do anything. … The inevitable result of the court’s decision today will be that many thousands of Wisconsin citizens will lose their right to vote despite doing everything they reasonably can to exercise it.
This is a travesty.
Rovner acknowledged that the Supreme Court’s Purcell principle counsels against judicial alterations to voting laws shortly before an election. But she also pointed out that SCOTUS has “put little meat on the bones” of this principle, doing “little to clear things up” through “a series of stay rulings on its shadow docket.” It’s notable that a sitting federal judge would question the Supreme Court, but this criticism is long overdue: It’s true that SCOTUS has provided little guidance on election law, instead evincing a general hostility toward the right to vote and leaving lower courts to fill in the gaps. By shaping rules through the shadow docket, the justices have avoided revealing the logic behind their (unsigned) orders greenlighting voter suppression.
In the absence of this information, Rovner wrote, lower courts must “carefully evaluate emergent circumstances that threaten to interfere with the right to vote.” But Easterbrook and St. Eve refused to even consider this right. Their indifference, Rovner explained, will disenfranchise thousands:
We know that tens of thousands of voters likely will not be able to return their ballots by mail before election day, through no fault of their own. We know that registering or voting in person, especially on election day, will expose some number of voters to a concrete risk of Covid-19 infection. Collectively, these conditions pose a real and substantial impediment to the right to vote. Whether that obstacle is viewed as modest or severe … it is unacceptable.
On Monday, in an unrelated case, Justice Brett Kavanaugh provided an additional reason for courts to stay out of election disputes: State legislatures, he wrote, are better suited to adjust voting procedures in light of the pandemic than federal judges. Rovner made quick work of Kavanaugh’s theory. “The irony of Justice Kavanaugh’s rationale,” she wrote, “is that unchecked deference to the state legislature as to voting procedures during a pandemic may render legislators unaccountable to voters wishing to exercise their franchise.” Indeed, “wholesale deference to a state legislature in this context essentially strips the right to vote of its constitutional protection.” And such deference is especially inappropriate when the legislature’s interests are nearly nonexistent. “All that the Legislature offers is a wish to have the results of the election conclusively determined on election night,” Rovner noted. “Weighed against the constitutional right to vote, this is thin gruel.” She concluded:
I am dismayed to be dissenting. It is a virtual certainty that current conditions will result in many voters, possibly tens of thousands, being disenfranchised absent changes to an election code designed for in-person voting on election day. We cannot turn a blind eye to the present circumstances and treat this as an ordinary election. Nor can we blindly defer to a state legislature that sits on its hands while a pandemic rages. … Today, in the midst of a pandemic and significantly slowed mail delivery, this court leaves voters to their own devices.
Good luck and G-d bless, Wisconsin. You are going to need it.
With this federal judiciary, we’ll all need it.