The Curse of ‘Pandemic Law’ Strikes the Electoral Process

On Monday, the Supreme Court voted 5-3 to uphold a stay on a federal district court order that struck down Wisconsin’s November 3 absentee ballot deadline and extended the deadline for the receipt of absentee ballots until November 9, so long as the ballots were postmarked by Election Day. As a result of the Supreme Court ruling, Wisconsin law is restored, and the extension will not apply.

Your first response to this ruling may tend to turn on your partisan feelings. Republicans have been more skeptical of mail-in ballots, including expanded absentee balloting. Democrats have been much more receptive to voting by mail but are deeply concerned their votes may not count.

So, Republicans should be happy with the outcome and Democrats displeased, right? Not so fast. When you dive deeper into the case, you learn how a doctrine that grants your “side” victory in one case may doom you in another.

If you’ve been reading me for a while, you know that I’ve argued repeatedly that it’s time for federal courts—especially the Supreme Court—to abandon what I’ve called “pandemic law.”

What is pandemic law? It’s the exceptional discretion that federal courts have granted state authorities to implement or apply laws that implicate or protect public health during the onset of the pandemic.

To put it more plainly, it’s time for courts to impose normal and ordinary rules of judicial review on state regulations. They should not simply rubber-stamp state laws, especially when those state laws substantially burden or preclude the exercise of core constitutional rights.

I do not mean that all pandemic-related laws should fall—by no means. I merely mean that when they burden the exercise of constitutional rights, they should be required to pass the normal level of judicial scrutiny.

For example, a mask mandate and social distancing requirements inside a church should easily pass even the strictest judicial scrutiny. The state has a compelling interest in controlling the spread of a deadly disease, and requiring masking and distancing while permitting worship is the least restrictive means of controlling the spread.

But what if a state allows a casino to operate more freely than a church? Then the court should strike down the regulation and permit the church to operate with at least as much freedom as the casino. After all, the First Amendment clearly and unequivocally protects free exercise of religion, and if free exercise means anything, it should mean that parishioners possess at least as much liberty as poker players.

But here’s the problem—that’s not how the Supreme Court is deciding pandemic cases. At least not yet. In fact, in the very case I linked above, the court held that the state could, in fact, grant casinos more liberty than churches. Why? In an earlier case, the court stated its initial approach to the pandemic:

When those officials “undertake[] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people.

That, readers, is “pandemic law.” In the face of uncertainty, the court says we must defer to the states.

But do rulings issued in the uncertain days of May and less-certain days of July still govern in October and November, when we know so much more? Can constitutional rights still be burdened so substantially by state regulations? The answer to that question may well determine the outcome to election challenges both before and after Election Day.

And that brings me back to Monday’s Wisconsin decision. Hang with me for a moment—this might get complicated.

We often think of presidential elections as a single national election, but they’re really fifty state elections governed primarily by state election law (subject to federal constitutional oversight). Thus, the court will tend to defer to state interpretations of state election law, so long as state election law doesn’t violate constitutional rights.

In the Wisconsin case, however, a federal trial court judge struck down state election law, and the judge did so close to Election Day. This action implicates the so-called Purcell principle. This principle, named after a 2006 case called Purcell v. Gonzalez holds that “federal courts ordinarily should not alter state election laws in the period close to an election.”

The reason is relatively obvious. Late changes can confuse voters and election administrators. Stability, by contrast, “protects the State’s interest in running an orderly, efficient election and in giving citizens (including the losing candidates and their supporters) confidence in the fairness of the election.”

The Purcell principle isn’t absolute. To quote Justice Kagan, it’s “not a rule, but a caution.” But it is potent. And it wouldn’t be remarkable if the Supreme Court had simply cited Purcell in response to the Wisconsin district court’s decision and moved on. After all, as Justice Gorsuch pointed out in his concurring opinion, “30 States have long enforced the very same absentee voting deadline.”

So, why am I alarmed? Because of the facts of the case and because of Brett Kavanaugh’s concurrence. First, let’s look at the facts. As Justice Kagan noted in her dissent, the lower court found that absent the ordered extension, voters could be disenfranchised even if they diligently and efficiently sought to exercise their right to vote:

The court found that the surge in requests for mail ballots would overwhelm state officials in the weeks leading up to the October 29 ballot-application deadline. And it discovered unusual delays in the United States Postal Service’s delivery of mail in the State. The combination of those factors meant, as a high ranking elections official testified, that a typical ballot would take a full two weeks “to make its way through the mail from a clerk’s office to a voter and back again”—even when the voter instantly turns the ballot around.

As a result, “as many as 100,000 citizens would not have their votes counted.” To be sure, these facts are contested. As Justice Kavanaugh argued, “[I]f a Wisconsin voter does not receive an absentee ballot in time to cast it, the voter still has the option of voting in person.” And voting in person is “reasonably safe.”

But these facts present a real challenge to the Purcell principle. The right to vote is constitutionally protected. The Purcell principle is a prudential rule. Reasonable minds can disagree as to when the threats to the right are so great that they overwhelm the prudential considerations that justify the principle.

But Justice Kavanaugh, in his concurrence, indicated that there was an additional reason to strike down the district court’s ruling—pandemic law:

Even apart from the [Purcell principle], the District Court misapprehended the limited role of the federal courts in COVID–19 cases. This Court has consistently stated that the Constitution principally entrusts politically accountable state legislatures, not unelected federal judges, with the responsibility to address the health and safety of the people during the COVID–19 pandemic.

More:

The virus poses a particular risk to the elderly and to those with certain pre-existing conditions. But federal judges do not possess special expertise or competence about how best to balance the costs and benefits of potential policy responses to the pandemic, including with respect to elections. For that reason, this Court’s cases during the pandemic have adhered to a basic jurisprudential principle: When state and local officials “‘undertake[] to act in areas fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad.’”

No. This is not March. It is not May. It is not July. This should no longer be the legal standard that applies to the exercise of fundamental constitutional rights in a pandemic that is now stretching on for eight months and counting. Federal courts have long admitted and considered expert testimony to “balance the costs and benefits” even of policy responses to matters of public health.

Apply normal scrutiny. Stop extraordinary deference. That does not mean that the court will always rule for voting rights litigants. Indeed, as I stated above, the Purcell principle is a prudent cautionary doctrine. But if state law would lead to widespread disenfranchisement, the existence of the pandemic cannot and should not be an independent reason for a judge or justice to simply wash his or her hands and leave the law alone.

(And in this instance, perversely enough, judicial deference could mean more people are exposed to the virus, not fewer. Pandemic law does not always yield the best results for public health.)

If a justice applies pandemic law now, in election contests, will he not apply it when other constitutional rights are at stake, such as the rights to free speech, assembly, or free exercise of religion? How much longer should churches labor under uniquely burdensome rules?

I’ve said it before, and I’ll say it again—let’s put pandemic law back on the shelf. Ordinary constitutional scrutiny is sufficient to protect our lives and our liberty.

One last thing…

I’m sorry. I know this was a wonky newsletter. But, hey, you didn’t subscribe to The Dispatch to get cotton candy in your inbox. You wanted prime rib!

But things can’t always be serious. If you follow me on Twitter or listen to the Advisory Opinions podcast, you know that I’m a huge fan of Ted Lasso, a new show on Apple TV. It’s comedy with a heart. You’ll love it. And to give you taste, here’s the trailer:

Photograph by Jakub Porzycki/NurPhoto/Getty Images.