A surprising reversal, under the circumstances, and one that might end up aggravating the current conflict over the confirmation of Amy Coney Barrett. Republicans had appealed a lower-court ruling that extended the period for receiving absentee ballots in Wisconsin to well past Election Day. Their first attempt to get the ruling overturned by the Seventh Circuit failed.
Rather than go immediately to the Supreme Court, the GOP rolled the dice on an en banc review, for reasons that will become clear in a moment. Jackpot, although it’s not clear whether this is an actual en banc decision:
A federal appeals court on Thursday blocked a decision to extend the deadline for counting absentee ballots in battleground Wisconsin, in a win for Republicans who have fought attempts to expand voting across the country.
If the ruling stands, absentee ballots will have to be delivered to Wisconsin election clerks by 8 p.m. on Election Day if they are to be counted. Results of the presidential race in the pivotal swing state would be known within hours of polls closing. …
Republicans appealed to a three-judge panel at the 7th U.S. Circuit Court of Appeals. The panel upheld Conley’s ruling on Sept. 29.
Republicans then asked all 11 members of the court to review the case. The court stayed Conley’s decision on Thursday.
At least, the Associated Press reports this as an en banc decision. The actual opinion lifting Conley’s order lists only three jurists in a 2-1 split. The dissent by Judge Rovner goes on for about three times the length of the controlling opinion, and concludes, “Good luck and G-d bless, Wisconsin. You are going to need it.”
Two days earlier, the Wisconsin state Supreme Court had opened the door to the challenge. The initial response from the Seventh Circuit was that Wisconsin’s court had mooted the challenge based on an earlier ruling. Republicans then asked the state court to clarify its ruling, which they did on Tuesday:
A divided Wisconsin Supreme Court told federal judges Tuesday that Republican lawmakers have the power to pursue an appeal as they try to prevent an expanded absentee voting counting period.
The 4-3 ruling is a victory for Republicans, but they still face obstacles as they try to undo a court order that would allow the counting of absentee ballots that arrive after Election Day if they are postmarked by then. …
Republicans appealed, but a three-judge panel from the 7th Circuit Court of Appeals unanimously concluded they didn’t have the authority to challenge Conley’s ruling because of a July ruling by the state Supreme Court.
Republicans contended the federal court had misunderstood the state Supreme Court decision and asked to let the Wisconsin justices weigh in. On Tuesday, the justices did so, finding 4-3 that Wisconsin lawmakers had the authority to continue the case over voting.
The most basic issue here is who gets to set the parameters for elections. State law on absentee ballots makes the restrictions plain, and if those are problematic, then the legislature (narrowly Republican) and the governor (Democrat) can amend them. Voters can hold the legislative and executive officers in the state accountable for those decisions. In this case, federal judge William Conley took it upon himself to impose a new set of rules. There is no accountability at all for that kind of intervention, and that’s a bigger problem than a ballot deadline.
At least so far from the reporting, the full Seventh Circuit panel must have agreed with that point of view. They note that Supreme Court precedent frowns on judges imposing last-minute rule changes on elections except in exceedingly emergent circumstances. And while COVID-19 is a legitimate and serious public-health crisis, the court notes, it’s also months old and voters have had plenty of time to prepare for mail-in balloting:
The Justices have deprecated but not forbidden all change close to an election. A last-minute event may require a last-minute reaction. But it is not possible to describe COVID-19 as a last-minute event. The World Health Organization declared a pandemic seven months ago, the State of Wisconsin closed many businesses and required social distancing last March, and the state has conducted two elections (April and August) during the pandemic. If the judge had issued an order in May based on April’s experience, it could not be called untimely. By waiting until September, however, the district court acted too close to the election.
The district judge also assumed that the design of adjustments during a pandemic is a judicial task. This is doubtful, as Justice Kavanaugh observed in connection with the Supreme Court’s recent stay of another injunction issued close to the upcoming election. Andino v. Middleton, No. 20A55 (U.S. Oct. 5, 2020) (Kavanaugh, J., concurring). The Supreme Court has held that the design of electoral procedures is a legislative task. See, e.g., Rucho v. Common Cause, 139 S. Ct. 2484 (2019); Burdick v. Takushi, 504 U.S. 428 (1992).
Voters have had many months since March to register or obtain absentee ballots; reading the Constitution to extend deadlines near the election is difficult to justify when the voters have had a long time to cast ballots while preserving social distancing. The pandemic has had consequences (and appropriate governmental responses) that change with time, but the fundamental proposition that social distancing is necessary has not changed since March. The district court did not find that any person who wants to avoid voting in person on Election Day would be unable to cast a ballot in Wisconsin by planning ahead and taking advantage of the opportunities allowed by state law. The problem that concerned the district judge, rather, was the difficulty that could be encountered by voters who do not plan ahead and wait until the last day that state law allows for certain steps. Yet, as the Supreme Court observed last April in this very case, voters who wait until the last minute face problems with or without a pandemic.
If this was indeed an en banc ruling, that leaves Democrats only the opportunity to appeal to an 8-member Supreme Court for immediate relief, but that seems pretty unlikely. It only takes four members to grant cert to have the case heard, but the court wouldn’t have enough time to hear it properly before the election. To get an injunction to reinstate Conley’s order, Democrats would need five votes on the Supreme Court — and right now there’s only three that would solidly be in favor of judicial activism, plus maybe John Roberts on a bad day. Plus, as the decision itself notes, the Supreme Court’s precedent cuts against last-minute rule changes anyway.
A 4-4 split won’t do anything for Democrats now. Nor would it have helped Republicans had they just appealed the case immediately to the Supreme Court, as that would have left Republicans stuck with their previous loss. That’s almost certainly why they chose to petition for an en banc review, even though that is something like a legal Hail Mary. Now, Democrats have only the slimmest of chances that the current Supreme Court will indulge in a bout of activism to reverse this loss. Or, if this isn’t an en banc ruling, Democrats can try that strategy and hope to catch lightning in a bottle.
All of this, though, gives Senate Democrats another issue to use in the Amy Coney Barrett confirmation process. They’re already asking Barrett how she’d rule in the challenge to ObamaCare; they’ll want to know what she thinks of this ruling and the ability of judges to impose rule changes on elections. In this case, though, both her judicial modesty and stare decisis cut in her favor.
Update: Politico confirms this is not an en banc decision. It went back to a three-judge panel instead. Zach Montellaro and Josh Gerstein don’t see much hope for Democrats in an en banc or Supreme Court appeal, either.
