Wisconsin Spotlight | Oct. 28, 2020
MADISON — The U.S. Supreme Court’s ruling upholding Wisconsin election law wasn’t merely a primer on the separation of powers, it was a wholesale rejection of judicial activism.
Justice Neil Gorsuch’s concurring opinion in Monday’s 5-3 ruling in particular was a tour de force opinion on the limits and responsibilities of the co-equal branches of government — one of the Founders greatest gifts to a free nation.
“The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” Gorsuch wrote, taking aim at U.S. District Court Judge William Conley. The Wisconsin circuit court judge, an Obama nominee, sided with liberal groups that sought to extend the deadline in which voters could turn in their absentee ballots to election clerks. Conley looked past state election law in granting a six-day extension beyond Election Day.
Democrats and their liberal allies argued that the deadline should be extended because of the extenuating circumstances of the pandemic. Not doing so, they argued, would disenfranchise some voters.
But Wisconsin law clearly states absentee ballots must be in the possession of election officials by the time the polls close on Election Day.
The ruling seemed to echo the conservative-led Wisconsin Supreme Court decision in May striking down Gov. Tony Evers’ lockdowns. The majority opinion in that ruling noted, “in the case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers indefinitely.”
In short, the law, the constitution, should not be curtailed by crisis.
“Last-minute changes to longstanding election rules risk other problems too, inviting confusion and chaos and eroding public confidence in electoral outcomes,” Gorsuch wrote. “No one doubts that conducting a national election amid a pandemic poses serious challenges. But none of that means individual judges may improvise with their own election rules in place of those the people’s representatives have adopted.”
Liberal Justice Elena Kagan, in a dissenting opinion, asserts otherwise.
“On the scales of both constitutional justice and electoral accuracy, protecting the right to vote in a health crisis outweighs conforming to a deadline created in safer days,” Kagan wrote.
Kagan, one of three liberal justices dissenting, warned that the sick and the elderly will “put themselves in peril” if they have to go to the polls and vote on Election Day as COVID-19 cases climb.
What the justice didn’t note is that Wisconsin has some of the more expansive voting schedules in the country, allowing voters ample opportunity to cast their ballots early.
“So it’s indisputable that Wisconsin has made considerable efforts to accommodate early voting and respond to COVID,” the justice wrote. “The district court’s only possible complaint is that the State hasn’t done enough. But how much is enough?”