Judges Frank Easterbrook and Amy St. Eve, appointees of Presidents Ronald Reagan and Donald Trump, respectively, ruled in favor of staying the lower court order.
The Supreme Court has “deprecated but not forbidden all change close to an election,” the appeals court said in its per curiam ruling. “A last-minute event may require a last-minute reaction. But it is not possible to describe COVID-19 as a last-minute event.”
“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 opinion continued. “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.”
Coronavirus cases in Wisconsin are surging and are threatening to overwhelm Wisconsin hospitals.
The panel’s decision to block the changes triggered a searing dissent by Judge Ilana Rovner, who accused her colleagues of gross indifference to the dangers the pandemic poses to voters and to the normal operation of elections.
“This is a travesty,” wrote Rovner, an appointee of President George H.W. Bush.
Rovner said neither the plaintiffs in the case nor the district court judge dallied as the litigation went forward, resulting in the Sept. 21 order from U.S. District Judge William Conley, an appointee of President Barack Obama.
Rovner described in-person voting in the April election a “debacle” and she strongly suggested the Wisconsin Legislature was derelict in not taking actions to address problems facing the general election next month.
“The right to vote is a right of national citizenship … It is essential to the vitality of our democratic republic,” Rovner wrote. “No citizen of Wisconsin should be forced to risk his or her life or well-being in order to exercise this invaluable right. Wholesale deference to a state legislature in this context essentially strips the right to vote of its constitutional protection.”
Rovner complained that a doctrine the Supreme Court and other courts have cited to block or deny judicially imposed changes shortly before an election — often called the Purcell principle, after a 2006 case by that name — is murky and has been wielded too broadly in the face of an emergency like the coronavirus pandemic.
“Purcell articulated not a rule but a caution,” she wrote. “The Supreme Court’s pattern of staying similar sorts of injunctions in recent months is long on signaling but short on concrete principles that lower courts can apply to the specific facts before them.”
And Rovner was more direct in her criticism of Supreme Court Justice Brett Kavanuagh over a concurring opinion he issued earlier this week, in connection with the high court’s decision to reinstate an absentee ballot witness requirement in South Carolina. Kavanaugh suggested that courts should defer to legislatures in crafting pandemic responses, but Rovner said that prescription contained a logical flaw.
“The irony of Justice Kavanaugh’s rationale is that unchecked deference to the state legislature as to voting procedures during a pandemic may render legislators unaccountable to voters wishing to exercise their franchise,” she wrote. The majority’s order cites, in part, Kavanaugh’s concurrence, which was not publicly joined by any other justice.
“The district judge also assumed that the design of adjustments during a pandemic is a judicial task. This is doubtful,” Easterbrook and St. Eve wrote. “The Supreme Court has held that the design of electoral procedures is a legislative task.”
Wisconsin was the site of back-and-forth legal battles during its chaotic spring election. The state Supreme Court ultimately blocked Democratic Gov. Tony Evers from postponing the election, which took place in early April, while the U.S. Supreme Court partially blocked a lower court’s order that would’ve allowed any ballot received by the Monday after the election to count, regardless of when it was postmarked, to saying ballots postmarked by that election and received by the following Monday would count.