I don't think it's any secret that I don't like Donald Trump. He's got an authoritarian streak, he can't stand criticism, and he does try to grab power he doesn't have. But, I'm not going to join those who have a knee-jerk reaction every time some branch of the U.S. Government takes an action or makes a decision that has the effect of decreasing the opportunities to cast or count votes and claim that it's part of some vast right-wing conspiracy to suppress the vote and keep Trump in power. There are times when lower courts, in an effort to do what the trial judge subjectively thinks is the morally right, overstep their authority. When that happens, the Supreme Court is within its authority to remind those lower courts that they need to work within the framework of the law and the Constitution. Among those constitutional principles that is important to uphold are the separation of powers and federalism. This is why the Supreme Court's decision on Monday, April 6th,addressing the election in the State of Wisconsin, although poorly written, was the right thing to do.
The Supreme Court's decision did not elaborate on the facts too well. For that, I had to go back to the decision of the U.S. District Court for the Western District of Wisconsin dated April 2, 2020. That decision addresses three consolidated cases, in all of which the plaintiffs challenge Wisconsin's election framework, within the context of the current COVID-19 crisis.
The entire world is the middle of a pandemic, from a virus which heretofore had not been identified, and had not infected humans. That is SARS-CoV2, which many have been identifying by using the shorthand, the coronavirus. It is actually just one, and indeed the newest, of many different types of coronaviruses, which, unfortunately, is confusing some people. The virus causes the disease that the World Health Organization calls COVID-19. COIVD-19 appears to cause mild symptoms in the vast majority of people. But in some people, it can cause serious respiratory issues, and death. There is some dispute over the death rate, but it appears to be between 1% and 3%, which is a much higher death rate than the flu. In addition, the virus appears to be more contagious than the flu. Because humans have not developed natural immunity to this virus yet, and because we currently do not have a vaccine against the virus, it has swept across the globe. With the first case in humans being identified in December of 2019, as of the time of writing, over 1.2 million people have been infected worldwide. Over 72,000 people have died from COVID-19.
COVID-19 has the potential to overwhelm the medical resources throughout the world. The recommendation of medical professionals has been to isolate those who have the virus, quarantine those who have come in contact with those who have the virus, and generally practice social distancing and safe personal hygiene for everyone else. Governors across the United States have issued stay-at-home orders, to prevent people from congregating and giving the virus more opportunities to spread. Surfaces are being cleaned more often, and people are being advised to wash their hands often, to wear masks in public and to try not to touch their faces. Most importantly, medical professionals have advised that we avoid large public gatherings.
However, this is an election year in the United States. In November, Americans will go to the polls to either to choose a new president, or re-elect President Trump. This spring, we are in the midst of primary season. That is, the separate states and territories are holding primaries or caucuses to nominate the Democratic candidate for president. In some states, they are holding elections for local and state offices at the same time as the primaries. The COVID-19 crisis has caused numerous states who had elections scheduled for April to postpone them, or to expand the opportunity for mail-in absentee ballots, due to the risk of spreading the virus. Wisconsin is not one of those states.
Wisconsin scheduled its election to be held on April 7, 2020 long before the current crisis. More well over a month, the Governor has been calling on the Wisconsin Legislature to postpone the election, or make it easier for people to cast mail-in absentee ballots. The Legislature has not responded. Meanwhile, because so many election workers are over the age of sixty, a category who is at a high risk of developing the severe symptoms of COVID-19, the rise in absentee ballots as well as opening the polls for the regular in-person voting, threatened to overwhelm Wisconsin election officials. Many voters requested absentee ballots in the last month leading up to Election Day. It was almost certain that thousands of applicants would not receive their absentee ballots before Election Day.
This is the situation where the U.S. District Court found itself. Three different lawsuit lawsuits were filed to do something about the Wisconsin election, such as extending deadlines, and waiving witness requirements for mail-in ballots. Under Wisconsin election law, ballots had to be received by April 7th in order to be counted. Wisconsin law also gave the municipal canvassing boards until April 13th to certify the vote count to the counties. The District Court, in a decision entitled
Democratic National Committee, et al., v. Marge Bastelmann, et. al., issued a preliminary injunction which, among other things, permitted absentee ballots received by April 13th to be counted, regardless of when the ballots were postmarked. A party submitted a request to stay the preliminary injunction (i.e. to prevent the injunction from taking effect) to Supreme Court Justice Brett Kavanaugh (submitting such a request to a Justice on the Supreme Court is normal Court procedure), who in turn referred the matter to the full Court. In a decision that pitted the five conservative members of the Court against the four liberal members, the majority issued a
per curiam opinion, meaning the five member majority spoke as one, granting the stay of the preliminary injunction. The sole issue for the Court was whether the District Court overstepped its authority by permitting ballots postmarked after April 7th to be counted so long as they were received by April 13th. That is, the Supreme Court permitted Wisconsin to continue to count ballots received by April 13th, so long as they were postmarked by Election Day, April 7th.
Many liberal pundits saw the Supreme Court's action as one of intentional voter suppression, aimed specifically at helping the Republican Party, and in particular Donald Trump, stay in power once the November presidential and congressional elections come around.
I read the Supreme Court's decision much differently.
Let me be clear, I am all in favor of taking action now to prepare for the November elections, and the possibility that the current crisis may still be around. I, too, have some fear that Trump and the Republican Party may take some action that may negatively affect the elections. After all, not only did Russia interfere in his favor in 2016, Trump has already been impeached for seeking Ukrainian interference in the 2020 election. The only thing that saved him from removal was the fact that the Republicans control the Senate, and Senate Majority Leader Mitch McConnell made sure that the Senate trial was a farce with no witnesses being called at all. I would love it if state legislatures acted now to address the November elections to expand the availability of early voting and mail-in voting just in case the coronavirus still has us sheltering in our homes at that time.
But let's be clear on some things. Trump has no authority to do anything directly to change, postpone or cancel the November elections. There is nothing in the Constitution, or any of the numerous federal statutes addressing the president's emergency powers that grant the president such authority. How the November elections are to be run is a matter for the people of the several states, through their legislatures, to address. Many Trump opponents fear he will nonetheless attempt to use the declaration of a national emergency to seize a power that is otherwise not granted to the presidency.
Yet, as I read the U.S. District Court decision, I noticed that the very thing that Trump's critics fear that he will do in the abstract, grab power that he doesn't have, is exactly what the District Court did. In its opinion, the District Court essentially states, "There is a crisis out there that nobody is doing anything about, so I'm going to create a solution, whole cloth, despite their being no statute or constitutional provision giving me the authority to do so." It is quite amazingly. The decision is bereft of any citation to law or constitutional provision giving it the authority to interfere and fundamentally alter Wisconsin's election framework. The District just says, "Voting is a fundamental right, so here's what you need to do." That is, the District Court just assumed that it had the authority to make its own deadlines and impose them upon Wisconsin's state government as a whole. Put another way, the U.S. District Court thought that it could act as if it were a legislature.
Again, if Trump had done this, those very same liberal pundits complaining about the Supreme Court would be up in arms over Trump's action.
Our Constitution engages in a dispersion of powers among not only the three branches of government, but also between the federal government and the government of the several states. This is known as separation of powers when it refers to the three branches of the federal government, and federalism when it refers to the division of powers between the federal government and the governments of the several states. They are the fundamental principles upon which our system of government is created, in order to avoid any one part of the government becoming too powerful and acting tyrannically. In this regard, a court that oversteps its authority can be just as tyrannical as an authoritative executive. The Supreme Court was absolutely within in prerogative to slap down a decision by a U.S. District Court that overstepped its power.
The lesson is two-fold. First, all branches of government need to respect the limits placed on their authority by the Constitution. Second, the state legislatures, as the law-making branch of government in their respective states, need to address the November elections now, before it becomes a crisis where well-intentioned courts will feel obligated to step in, regardless of the limits on judicial power.
By: William J. Kovatch, Jr.
References
For general facts about the virus, I referred to the World Health Organization's website.
Information can also be found on the Centers for Disease Control's website.
The U.S. Supreme Court Decision can be found here:
Republican National Committee, et al., v. Democratic National Committee, et al., Slip Op. Crt. No. 19A1016 (U.S. Supreme Court April 6, 2020).
The U.S. District Court decision can be found here:
Democratic National Committee, et al., v. Marge Bostelmann, et al., Slip Op. Crt. No. 20-cv-249-wmc (W.D. Wis. April 2, 2020).
Johnson, Jake, "'One of the Most Brazen Acts of Voter Suppression in Modern Times,' as US Supreme Court Blocks Absentee Ballot Extension in Wisconsin," Common Dreams (April 7, 2020).
Liptak, Adam, "Supreme Court Blocks Extended Voting in Wisconsin," The New York Times (April 6, 2020).
Litman, Leah, "The Supreme Court's Wisconsin Decision Is a Terrible Sign for November," The Atlantic (April 7, 2020).
Perrett, Connor, "'Voter suppression on steroids': Wisconsin's decision tohold the state's in-person primary amid the COVID-19 pandemic will suppressvoters, advocates warn," Business Insider (April 7, 2020).
Stern, Mark Joseph, "The Supreme Court's Wisconsin Election Decision is 2020's Bush v. Gore," Slate (April 7, 2020).
