Thousands, perhaps even tens of thousands, of Wisconsin voters may have their ballots tossed out for the most arbitrary of reasons: because the post office either did not place a postmark on their absentee ballot when it was mailed in, or because that postmark doesn’t have a date.
The reason why stretches back to a surprising decision the Supreme Court handed down the night before Wisconsin’s Tuesday primary election. That case, appropriately named Republican National Committee v. Democratic National Committee, was brought by Republicans seeking to make it harder for many absentee voters to have their ballots counted.
Democrats hoped to defend a lower court order providing that all absentee ballots would be counted, so long as they arrived at the appropriate polling place by 4 pm on April 13. Republicans, meanwhile, successfully asked the Court to impose a new limit on voters — that absentee ballots had to have been postmarked by April 7 or else they would not be counted.
The lower court judge originally extended the deadline to cast ballots because the coronavirus pandemic left many voters unable to vote in person, and forced the state to deal with an unmanageable load of absentee ballot requests.
The Supreme Court split along partisan lines in the Republican case, with all five Republican justices voting for the GOP’s position, and all four Democratic justices in dissent.
As it turns out, the post office does not place any postmark at all on some mail, such as ballots sent via metered mail. In other cases, ballots had postmarks which merely said the ballot was mailed at some point in April of 2020, without giving a specific date. In some other cases, the postmark was too illegible to determine on what date it was mailed.
These problems appear to be widespread. As of Friday, for example, the Madison city clerk said that her office received over 8,000 absentee ballots. Of these ballots, 682 have no postmark. If similar patterns occur throughout the state, that means thousands or even tens of thousands of voters could have their ballots tossed out through no fault of their own.
It’s not immediately clear what’s going to happen to at least some of the ballots. The post office appears to have used a special postmark on Election Day, which simply says “APR 2020,” and the state’s bipartisan election commission agreed to count ballots with that postmark so long as the Postal Service provides a statement that this particular postmark was only used on that one day.
Meanwhile, the parties appear to be split on whether to count ballots that arrived on Wednesday, April 8 — Democrats argue that, even if these ballots do not have a postmark, they must have been mailed by Tuesday, April 7, at the latest in order to arrive by Wednesday. But even if Democrats win this particular struggle, voters whose ballots arrive with no postmark on Thursday or later still face disenfranchisement.
Voters are losing their right to vote because the Supreme Court didn’t follow its ordinary procedures.
Underlying this entire saga is a tale of judicial arrogance by the five most powerful judges in the nation. The specific order the GOP sought from the Supreme Court is known as a “stay pending appeal,” meaning that the Supreme Court blocks a lower court order from taking effect while a full appeal of that order is winding its way through the appellate process (although, in this case, it is far from clear that there will be any further federal litigation regarding which ballots are counted).
Ordinarily, a party seeking such a stay bears a heavy burden. It is not enough for that party to show that they are likely to prevail on the merits once the case is fully litigated. Rather, they must also show that they would be irrevocably injured by the lower court order, and that the “balance of equities” weighs in favor of granting a stay.
There are several good reasons why parties requesting a stay must carry an unusually heavy burden. One of the most important reasons is that trial judges are normally intimately familiar with the record in a particular case, and they have often spent a great deal of time learning the nuances of a state’s law and how that law interacts with the facts on the ground. For that reason, they are less likely to hand down an order that has unintended consequences because they’ve had plenty of time to think about what consequences could arise from a particular order.
Appellate judges, by contrast, often parachute into a case with nothing more than a handful of briefs and a selectively culled record to inform their decision. Moreover, while appeals courts typically take months to decide cases — giving them plenty of time to become familiar with the record — judges hearing an emergency stay request only have days, or potentially even hours, to familiarize themselves with the case. So they are more likely to hand down an order that creates unintended consequences.
Appellate judges are more likely, for example, to say that all ballots must be postmarked by a certain date, without realizing that some ballots will arrive with no postmark at all.
One of the striking things about the Supreme Court’s order in Republican is that the majority opinion makes no mention of the standard that normally applies to stays pending appeal, nor does it acknowledge that lower court judges typically should be treated with a degree of deference in emergency stay proceedings.
Moreover, this disregard of the court’s ordinary procedures is not an isolated incident. As Jaime Santos, a lawyer and co-host of the popular legal podcast Strict Scrutiny, notes on Twitter, “the Supreme Court’s stay factors have devolved in politically charged cases (perhaps all cases) into simply a question of whether or not five Justices disagree with the lower court.”
Indeed, just last February, Justice Sonia Sotomayor accused her colleagues of disregarding the ordinary procedures for stays pending appeal when one particular party — the Trump administration — requests such a stay. “It is hard to say what is more troubling,” Sotomayor wrote. “That the government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.”
It now appears that the Republican Party may also receive the same special deference that the Roberts Court has historically given to the Trump administration.
In theory, Democrats may be able to go back to the Supreme Court and ask it to modify the Republican order to ensure that ballots cast without postmarks are still counted. Given the Supreme Court’s conduct so far in this case, however, it appears unlikely that such a request would succeed.
The most likely outcome will be that at least some Wisconsin voters will be disenfranchised due to arbitrary factors, such as whether they used stamped or metered mail.