Hacktacular! Sending voters in the path of a deadly virus to rig an election edition

Since this is a sentence I will very rarely get to type, I should say that the Supreme Court decided two cases with political valence correctly this week. In Maine Community Health, the Court allowed insurance companies to sue to recover money they were denied by Marco Rubio’s scheme to deny insurance companies compensation for having a riskier customer pool without appropriately changing the commitments made by the ACA. While congressional Republicans put their fanatical opposition to people less well-situated than themselves having access to good health insurance ahead of the interests of business, the conservatives on the Roberts Court could be expected to have the opposite priorities, especially on a matter of black letter law. Only Sam Alito, the worst long-term Supreme Court justice since James McReynolds, dissented.

In New York State Rifle, the Court threw out a challenge to a New York gun regulation that had been modified in precisely the way the plaintiffs sought, for the very obvious reason that the case was now moot. In this case, three conservatives (Alito, of course, Gorsuch and Thomas) dissented on a matter of black letter law. While ridiculous enough on the merits, as Leah Litman observes the dissent completely contradicts the logic the Roberts Court five used to allow Wisconsin Republicans to unnecessarily expose people to a deadly virus to rig an election:

Second, and more importantly, on Wisconsin. As most or at least many of you probably know, in RNC v. DNC, the Supreme Court stayed an injunction that would have extended the deadline for receiving absentee ballots in Wisconsin. Wisconsin opted to go forward with holding its presidential primary and various judicial elections on April 7, while the state was also subject to a shut down and stay at home order. The district court had enjoined the state from enforcing the requirement that ballots be received the day after the election (April 8^th), at least until April 13^th.  The Supreme Court stayed that order, and in the course of doing so also imposed a requirement that the ballots be postmarked by April 7^th. (That postmark requirement does not appear or exist in state law. And one of the reasons the Supreme Court gave for staying the district court’s order was because the district court had altered the requirements of the election too close to the election, which risked confusing voters. But that did not stop the Court from altering the requirements of the election *the day before the election*.)

The Supreme Court’s opinion generated considerable outcry. (I was among those who criticized the Court’s sloppy and unpersuasive legal reasoning and callous disregard for the lives of Wisconsin voters.  Sherrilyn Ifill also wrote this powerful piece situating the Court’s order among many instances where the Court’s conservative majority has countenanced voter suppression efforts by looking the other way and ignoring the burdens and sometimes deadly costs imposed on voters, often of color.) Then there was the anti-outcry—people who took this occasion to position themselves as more learned and reasonable by insisting that maybe the Court’s decision was closer than all of the angry, unreasonable people were suggesting and so on.

Subsequent developments have strengthened the initial critics’ arguments. There have already been more than 40 coronavirus cases linked to in-person voting in Milwaukee alone. Milwaukee has comparatively more racial minoirites than many other areas in Wisconsin. (The threat of contracting the deadly virus – in areas like Milwaukee, where the number of polling places was reduced from 180 to 5 – was among the concerns that the RNC dissenters and critics of the majority had raised, and that the RNC majority did not even acknowledge.)

And the NYSRPA dissent confirms the hollowness of the RNC majority’s reasoning.  One of the reasons the RNC majority gave for staying the district court’s order – thus denying the plaintiffs the relief they obtained in the district court – is because the plaintiffs had not requested an extension of the deadline to file absentee ballots. Now, that claim was dubious – the plaintiffs, in their papers, argued that they had requested this form of relief; the RNC dissenters pointed to a section of a transcript where the plaintiffs requested it; and as we’ve discussed on Strict Scrutiny, the district court’s earlier orders in the case referred to the plaintiffs’ request to extend the receipt deadline for absentee ballots. So everyone except the RNC majority appeared to think the plaintiffs had requested an extension.

NYSRPA confirms that at least three Justices in the RNC majority – Justice Gorsuch, Justice Thomas, and Justice Alito—don’t actually care whether plaintiffs requested a particular form of relief or not.  In NYSRPA, the plaintiffs had specifically requested an injunction against the enforcement of NYC’s no-longer-existent requirement. The dissenters explained that: “If this Court were to hold, as petitioners request and as I believe we should, that 38 N. Y. C. R. R. §5–23 violated petitioners’ Second Amendment right, the District Court on remand could (and probably should) award damages.” In other words, they are specifically endorsing the proposition that district courts can and should award plaintiffs different forms of relief than what the plaintiffs requested – here, legal relief (damages) versus equitable relief. In RNC, by contrast, they argued that the plaintiffs’ (asserted) failure to request a specific form of equitable relief meant that the district court was wrong to award it.

So what gives? I don’t want to go on and on about Wisconsin. But I do want to say that NYSRPA is another example of the perspective that some critics brought to the Court’s decision in RNC v. DNC. That perspective is exemplified by the broader and more wide-ranging lens that Sherrilyn Ifill’s Slate piece applied to evaluate the Court’s decision in RNC.  She argued, and I agree, that the bankruptcy of the Court’s decision in RNC was evident in light of the Court’s other cases on voting (and other topics too). Those other cases underscore why the purported “principles” that the RNC majority gave (or that the Court’s apologists gave) are unpersuasive and, at a minimum, do not justify forcing voters to vote in public in the midst of a deadly pandemic. 

For example, NYSRPA confirms the selectivity with which some Justices apply the principles they gave for their votes in RNC. When you put the two decisions together, they seem to say something like: It is okay for courts to award plaintiffs in Second Amendment cases relief they didn’t explicitly seek, but it is not okay for courts to award plaintiffs in voting rights cases relief they didn’t explicitly seek (even when not awarding that relief could force those voters to the choice between not voting or voting and contracting the coronavirus). That’s hardly a defensible principle. (The NYSRPA dissenters made clear that they were not suggesting the plaintiffs could amend their compliant to seek damages; instead they maintained that the plaintiffs’ request for “any other such further relief as the court deems just and proper” could encompass a request for damages. If that’s true, then why wouldn’t that generic catch all language be good enough for the RNC plaintiffs to have requested an extension for receiving absentee ballots.)

The mainstream media discourse at the time of Alito’s confirmation hearing by reporters completely unable to distinguish between form and substance was truly wild. They were right that the “Scalito” conflation was facile and untrue, but what they didn’t understand was that it was unfair to Scalia.