Washington Post significantly overstates Supreme Court's role in RNC v. DNC absentee ballot dispute

The headline at the Washington Post in the aftermath of the Wisconsin presidential primary election (and, among other elections, state supreme court election) is a bit curious: “Unexpected outcome in Wisconsin: Tens of thousands of ballots that arrived after Election Day were counted, thanks to court decisions.” Why “unexpected”? Well, unexpected if you didn’t read what the lower courts were doing and only focused on certain opposition to the Supreme Court’s decision in RNC v. DNC.

A three-journalist by-line offer some of these takes:

But in the end, tens of thousands of mail ballots that arrived after the April 7 presidential primaries and spring elections were counted by local officials, a review by The Washington Post has found — the unexpected result of last-minute intervention by the U.S. Supreme Court.

…

The surprising outcome after warnings that many Wisconsinites would be disenfranchised amid the pandemic was the result of a largely unexamined aspect of the court’s decision that temporarily changed which ballots were counted. Because of the order, election officials for the first time tallied absentee ballots postmarked by Election Day, rather than just those received by then — underscoring the power of narrow court decisions to significantly shape which votes are counted.

…

Democrats think they have secured a game-changing precedent from the Supreme Court’s 5-to-4 order.

…

In Wisconsin, the Supreme Court’s ruling opened the door to a surge of valid absentee ballots that officials would have otherwise rejected under a state law requiring them to be received by Election Day.

…

The five conservative justices sided with the GOP, issuing an opinion on the eve of in-person voting that a blanket extension of the deadline would improperly allow voters to cast their ballots after April 7. Instead, they said ballots had to be postmarked by Election Day — effectively imposing a new standard.

…

When Republicans appealed to the Supreme Court, they challenged the decision of lower courts to extend the ballot deadline but did not explicitly seek a postmark deadline.

In bold, in the last portion of my excerpt, is a line that appears in the 45th paragraph of the piece.

What’s “surprising,” “unexamined,” and so on is because the obsessive focus was never on the lower courts’ proceedings, but instead on one aspect of the Supreme Court’s decision (highlighted by the dissenting justices, which cued how many journalists framed the litigation).

The Supreme Court concluded that an April 2 District Court order, effectively extending the election from April 7 to April 13 (refusing to count ballots until then, counting all ballots received until then, and so on), was too dramatic a departure too late in the election process. Four dissenting justices focused on disenfranchised voters—i.e., those who wanted to vote by mail but would have difficulty doing so by April 7. That’s what many journalists “examined.”

But the District Court did extend the deadline for receiving absentee ballots. Some states authorize jurisdictions to count ballots received days after Election Day, as long as they were postmarked by Election Day. Other states, like Wisconsin, require absentee ballots to arrive by Election Day to count. The District Court, as a part of the litigation, determine that the present circumstances required extending the absentee ballot deadline beyond Election Day, as long as it was postmarked by then. (It made other changes, too, like extending the deadline to require absentee ballots.)

Republicans expressly opted not to challenge this portion on appeal. Indeed, while the Washington Post’s 45th paragraph says that Republicans “did not explicitly seek a postmark deadline” (which, I think, means “did not seek to challenge the postmark deadline rules”), it’s actually more than tacit acquiescence: Republicans expressly did not appeal that part of the order. From its emergency application in the Supreme Court:

The relief that Applicants seek here is exceedingly modest. Applicants appreciate the challenges that the current pandemic creates for voters and election officials. They have not appealed other adjustments made by the district court, such as its extension of the deadlines to remotely register to vote and to request an absentee ballot. And although Applicants maintain that the issue of late-arriving ballots is premature and could be addressed when and only if the predicted mail delays actually materialize, Applicants only ask for a partial stay of the portion of the district court’s order, making clear that the extension of the deadline for the receipt of ballots applies only to those that were postmarked (or otherwise delivered) by April 7. This would give the Respondents the relief they actually requested, respect this Court’s warnings about courts altering the rules on the eve of elections, and prevent the serious possibility of fraud and misconduct created by the district court’s order.

Republicans affirmatively did not appeal this aspect of the District Court’s order. They wanted modest relief. They acknowledged remaining disputes on the facts but also acknowledged the tradeoffs of changing rules prior to the election (essentially, an inversion of the Purcell principle).

Additionally, the Washington Post is overstating it to say that the Supreme Court “effectively impos[ed] a new standard.” It did no such thing. The standard was one created by the District Court. And it was one the parties never litigated, from the very opening of the the Supreme Court’s opinion:

Wisconsin has decided to proceed with the elections scheduled for Tuesday, April 7. The wisdom of that decision is not the question before the Court. The question before the Court is a narrow, technical question about the absentee ballot process. In this Court, all agree that the deadline for the municipal clerks to receive absentee ballots has been extended from Tuesday, April 7, to Monday, April 13. That extension, which is not challenged in this Court, has afforded Wisconsin voters several extra days in which to mail their absentee ballots. The sole question before the Court is whether absentee ballots now must be mailed and postmarked by election day, Tuesday, April 7, as state law would necessarily require, or instead may be mailed and postmarked after election day, so long as they are received by Monday, April 13. Importantly, in their preliminary injunction motions, the plaintiffs did not ask that the District Court allow ballots mailed and postmarked after election day, April 7, to be counted. That is a critical point in the case.

One more line later in the opinion:

The Court's decision on the narrow question before the Court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate. That point cannot be stressed enough.

In short, the Supreme Court never examined the extended absentee ballot receipt deadline. While it’s “important[]” that that issue was not appealed, that’s because it makes its per curiam decision not effectively extend Election Day to April 13, as it opens, a “narrow, technical” question.

It would be remarkable if the Supreme Court overturns a lower court decision that neither party challenges on appeal. To say that failure to do so is “effectively impos[ing] a new standard” is something of an overstatement.

Now, I don’t doubt that litigants will seize on the District Court’s action to seek opportunities—frankly, on thin records at the moment ahead of the November election—to claim that absentee ballots received after Election Day but postmarked by then should be counted in those states that require receipt by Election Day. The NCSL reports that 42 states and DC require mail-in ballots to be received by Election Day. So it would be a fairly significant departure for district courts to start revising election laws right now—particularly given that (1) legislatures have ample opportunity to address the matter ahead of November, and (2) there is deep uncertainty about what voting in November 2020 looks like. That said, there will undoubtedly be increased requests for vote-by-mail opportunities, increased snafus in trying to meet demand, and increased challenges in the Post Office trying to deliver ballots by Election Day. How individual district court judges handle these requests—how quickly, and with what kinds of appeals—remains deeply uncertain.

That said, I don’t think RNC v. DNC tells us very much, if anything, about these matters. It’s hardly a “game-changing precedent.” If anything, it indicates that, with a thin record, a decision close to the election, and a properly-framed appeal, the Supreme Court would find such a judicial order unwarranted. But we’ll see how the litigation unfolds in the months ahead.

Note: I’m fairly sloppy with my use of “absentee” and “vote-by-mail” in blog posts, often using them interchangeably, so please forgive me!