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| Molly McGrath (left), a voting rights attorney with the ACLU, works with Madison residents to get IDs they need to vote under Wisconsin’s strict voter-ID law. Early voting efforts by election clerks in metro voting districts increased voter turnout following a pro-voting rights win in federal district court in One Wisconsin Institute v. Thomsen (2016) that swept away Wisconsin Republican voter-obstruction legislation. Today, early voting received another boost from the U.S. Supreme Court in the election law case that rejected Republicans' legal theory that federal law requires states to reject absentee ballots received after election day. Early voting was not at issue in Watson v Republican National Committee, and came up in oral arguments in March 13, 2016. (Photo courtesy of Molly McGrath) |
MADISON, WIS. — A major front in Trump's war against voting was dealt a 5-4 defeat Monday in the closely watched election law case, Watson v. Republican National Committee.
The U.S. Supreme Court majority opinion is authored by Justice Amy Coney Barrett, and brought together Chief Justice John Roberts and the Court's three liberal justices.
Trump, the U.S. DoJ and national and state Republicans had decided states should only count mail-in ballots received on or before Election Day, federal law requires states to reject absentee ballots received after election day. Both propositions were rejected.
Republicans challenged a Mississippi statute that allows ballots postmarked by Election Day.
Mississippi is one of roughly 30 States that count some absentee ballots mailed by election day but received afterward, Barrett noted.
Republican Legal Theory Rejected
The Republican position is soundly rejected in Watson v. Republican National Committee, in which Justice Barrett concludes, "The question today is not whether requiring ballots to be received by election day is a good or bad idea; the question is whether the idea has made its way into the United States Code."
Early Voting Gets Explicitly Affirmed
Early voting efforts, especially in Wisconsin that has substantially utilized early voting efforts by election clerks in metro voting districts the last eight years, were given an unexpected affirmation by Watson v. Republican National Committee, after years of state partisan battle with Wisconsin Gov. Scott Walker, (2011-19).
The issue of early voting is not of issue in Watson, but arose in oral arguments and in briefing, in which litigants and the Court argued whether federal election-day statutes prevent states from counting mail-in ballots that are postmarked by Election Day, but arrive up to five days later, as in Mississippi.
In oral arguments justices frequently push lawyers to apply their legal theories to hypothetical situations. Both the Republican National Committee and U.S. Department of Justice attorneys agreed in oral arguments federal election-day statutes permit early voting, Barrett pointed out.
Paul D.
Clement, Alexandria, Va.; and D. John Sauer, Solicitor General, U.S. Department of Justice, Washington, D. C. (for United States, as amicus
curiae) argued the RNC's case at oral arguments as respondents.
Early Voting in Wisconsin
In federal district court in One Wisconsin Institute v. Thomsen (2016) a landmark voting rights win swept away much Wisconsin Republican voter-obstruction legislation, 2013 Wisconsin Act 146, that included curtailing in-person absentee voting, early voting, aimed at minorities in Madison and Milwaukee.
In One Wisconsin Institute v. Thomsen, (2016), U.S. District Judge James Peterson writes:
Plaintiffs (voting rights advocates) have adduced evidence that weekend and evening voting is particularly important for socioeconomically disadvantaged voters, and that, in Wisconsin and nationwide, African American and Latino voters have made particularly good use of various forms of early voting.
Early voting in groups on Sundays—including church-supported “Souls to the Polls” efforts—is a widespread practice among African American voters, in Wisconsin and nationwide.
But again, a disparate impact, without more, does not prove intentional discrimination.
But plaintiffs have more. Statements by legislators show that Act 146 reduced the hours allowed for in-person absentee voting specifically to curtail voting in Milwaukee, and, secondarily, in Madison. [State] Senator Grothman made repeated statements objecting to the extended hours for in-person absentee voting in Milwaukee and Madison, indicating that hours for voting needed to be “reined in.” On the floor of the senate, he said, “I want to nip this in the bud before too many other cities get on board.”
Senate Majority Leader Scott Fitzgerald made similar comments. As he put it, “But the question of where this is coming from and why are we doing this and why are we trying to disenfranchise people, I mean, I say it's because the people I represent in the 13th district continue to ask me, ‘What is going on in Milwaukee?’ ...
The legislature's ultimate objective was political: Republicans sought to maintain control of the state government. But the methods that the legislature chose to achieve that result involved suppressing the votes of Milwaukee's residents, who are disproportionately African American and Latino. The legislature did not act out of pure racial animus; rather, suppressing the votes of reliably Democratic minority voters in Milwaukee was a means to achieve its political objective. But that, too, constitutes race discrimination.
Many Wisconsin cities did get on board promoting early voting in response to the District Court's 2016 evisceration of 2013 Wisconsin Act 146.
Now, the U.S. Supreme Court has given One Wisconsin Institute v. Thomsen precedent protection in a case that will control expected Republican legal and state counter offensives.
Notes Jacob Knutson on early voting in Watson v. Republican National Committee in Democracy Docket:
In the case, [Watson] the RNC argued that Mississippi’s law offering a grace period for late-arriving ballots mailed by Election Day violated the election-day statutes: a set of federal laws that designate 'the Tuesday next after the first Monday in November… as the day for the election' for federal elections. ...
[T]he Court disagreed, ruling that the states 'do not set a deadline for ballot receipt' and therefore 'do not prevent Mississippi from counting ballots postmarked after election day yet received afterward.'
Barrett added that if the Court adopted the RNC’s legal theory in the case, 'early voting would also be at risk.'
'At bottom, plaintiffs’ theory is that because we are governed by 19th-century election-day laws, we are also governed by 19th-century voting practices,' she wrote.
Going further, Barrett warned that, 'Carried to its logical conclusion, this theory would call into question the way modern elections work.'
Barrett noted in the opinion that the RNC and Department of Justice (DOJ) — which joined the RNC in challenging Mississippi’s law — both agreed in oral arguments earlier this year that the election-day statutes permit early voting.
'Although the election-day statutes refer to a particular ‘day’ for the election, plaintiffs do not contend that everything must occur on that day,' Barrett wrote. 'For instance, they do not object to early voting or dispute that officials may count votes and certify a winner after election day."
Though he dissented from the Court’s decision on late-arriving mail ballots, Justice Samuel Alito agreed with the majority that the election-day statutes permit early voting.
Thus, we see a Supreme Court voting rights case deciding the issue presented—affirming states can allow one class of voters to be counted, those whose absentee ballots arrive after Election Day while being postmarked by Election Day—and explicitly protecting a different class of absentee voters, early voters, after discussion in oral arguments.
There will a reckoning from Republicans in Wisconsin, and across the nation.
