Voting Rights

Supreme Court Blocks Wisconsin Absentee Voting Extension

Republican National Committee v. Democratic National Committee, 140 S.Ct. 1205 (2020).

Written By: Doug Post

In Republican National Committee v. Democratic National Committee, (April 6, 2020) the U.S. Supreme Court stayed a District Court order that had extended the deadline for absentee ballots to be submitted in Wisconsin’s April 7th election. The United States District Court for the Western District of Wisconsin had granted a preliminary injunction extending the deadline for the state’s receipt of absentee ballots and required the state to count absentee ballots postmarked after election day up until an April 13th deadline. The order not only extended the deadline in which ballots could be received by municipal clerks but also extended the deadline in which the ballots could be cast by voters. Additionally, the District Court issued a subsequent order enjoining the public release of any election results for six days after election day so that ballots cast after the April 7th election day would not be affected.

Justice Kavanaugh’s majority opinion noted that not only were these injunctions unusual but that the injunctions were at odds with the Purcell principle which asserts that lower courts should be reluctant to change election rules on the eve of an election due to the risks of voter confusion:

The District Court’s order suppressing disclosure of election results showcases the unusual nature of the District Court’s order allowing absentee ballots mailed and postmarked after election day to be counted. And all of that further underscores the wisdom of the Purcell principle, which seeks to avoid this kind of judicially created confusion.

The Court noted that the plaintiffs had not asked for such an injunction from the District Court, originally only seeking to extend the deadline that ballots would be received by municipal election officials. Therefore, the Court granted the stay of the District Court’s orders pending final deposition of the appeal by the United States Court of Appeals for the Seventh Circuit.

Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, issued a dissenting opinion in which they would keep the District Court’s orders in place. The dissent noted a need to accommodate the unprecedented number of absentee ballots cast in the Wisconsin election due to the COVID-19 pandemic:

While I do not doubt the good faith of my colleagues, the Court’s order, I fear, will result in massive disenfranchisement …. Rising concern about the COVID–19 pandemic has caused a late surge in absentee-ballot requests. (citation omitted). The Court’s suggestion that the current situation is not “substantially different” from “an ordinary election” boggles the mind.

U.S. Court of Appeals Stays Texas Mail-In Ballot Injunction

Texas Democratic Party v. Abbot, 961 F.3d 389 (5th Cir. 2020).

Written By: Douglas Post

In response to the challenges imposed on in-person voting by the COVID-19 pandemic, the Texas Democratic Party sued Texas Governor Greg Abbot and Texas Secretary of State Ruth Hughs in federal and state courts. The plaintiffs were seeking injunctive relief that would enable all Texas voters to cast their ballots by mail if they did not feel comfortable voting in person due to the pandemic. The United States District Court for the Western District of Texas found for the plaintiffs and issued a preliminary injunction ordering that “any eligible Texas voter who seeks to vote by mail in order to avoid transmission of the Virus … can apply for, receive, and cast an absentee ballot in upcoming elections.”

The defendants appealed to the U.S. Court of Appeals for the Fifth Circuit which granted the state officials’ motion to stay the preliminary injunction pending appeal. The plaintiffs claimed that under the current circumstances created by the pandemic, Texas voting laws on mail-in ballots violate the 14th Amendment’s Equal Protections Clause, violate the 26th Amendment, and are unconstitutionally vague. The Texas statute on mail-in ballots states: “A qualified voter is eligible for early voting by mail if the voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.” Texas elections law also allows voters aged 65 and older to have access to early voting by mail.

The Court of Appeals found that the statute, even when interpreted under the current circumstances, does not prevent voters from casting their ballots. Because voters still have access to polling places, their fundamental right to vote under the 26th Amendment has not been violated and Strict Scrutiny should not be applied to the Texas statute. Instead, Rational-Basis Review should be applied. The court found that the government had a legitimate interest in preventing election fraud and that allowing only a limited number of Texans to vote by mail is rationally related to preventing election fraud. The court also found that Rational-Basis Review likely controls when examining the laws for Equal Protections issues. Senior citizens have unique difficulties that may make it impossible to vote in person and giving senior citizens access to early mail-in ballots helps avoid those difficulties. Younger Texans without disabilities are not specifically discriminated against by the election laws. Therefore, there is no need to extend mail-in ballot measures to all Texans simply because older Texans and Texans with disabilities have access to mail-in ballots. Finally, the court found that the Texas statutes are not vague or overbroad. The court noted that “States … have broad powers to determine the conditions under which the right of suffrage may be exercised,” thus, Texas has broad discretion when deciding who has access to mail-in voting.

The U.S. Supreme Court denied the plaintiff’s application to vacate the stay.