Supreme Court

A Bumpy Road to Voting in Wisconsin: Absentee Ballot Issues

vebrankovic · October 28, 2020 ·

By: Brianna Mashel

This election cycle has been turned on its head by safety concerns related to the COVID-19 pandemic. According to recent reporting by the Pew Research Center, about four-in-ten registered voters (39%) say they plan to cast their vote by absentee or mail-in ballot this year (or already have done so), compared with 33% who say they plan to vote in person on November 3, and 21% who have voted in person or plan to vote in person at an early voting location before Election Day. In fact, even before the onset of the pandemic, voters casting mail-in ballots increased nearly threefold between 1996 and 2016 – from 7.8% to nearly 21% – and the Census Bureau’s voter supplement data found seven-in-ten adults favor allowing any voter to vote by mail. Nonetheless, there is significant variation from one state to another on the handling of absentee and mail-in voting. A case in point is Wisconsin, which has opted to rely on its existing absentee voting system even though it is currently one of the nation’s hot spots for COVID-19, with hospitals treating a record high number of patients with the disease.

In Wisconsin, absentee voting is relatively easy. Any registered voter is eligible to request an absentee ballot and voters do not need a reason or excuse to vote absentee. A ballot request and a copy of an acceptable photo ID with the applicant’s request must be received by the clerk no later than 5:00 p.m. on the Thursday before Election Day. The completed absentee ballot must be delivered no later than 8:00 p.m. on Election Day. This year, as many as two-thirds of all ballots, or roughly 2 million, are projected to be cast absentee. Although this process seems simple, Wisconsin voters have already experienced bumps in the road – literally.

Schrödinger’s Citizens: The Trouble with Territorial Disenfranchisement

Election Law Society · October 19, 2020 ·

By Scott Meyer

According to a 2017 poll, nearly half of Americans were unaware Puerto Ricans were U.S. citizens. This discrepancy seems to bely the fact that U.S. territories, of which Puerto Rico is the largest, constitute over three and a half million U.S. citizens, have some of the highest military enlistments per capita, and even pay some federal taxes. However, despite over a century of combined history as U.S. territories, their citizens still lack one of the foundations of American democracy: the right to vote in presidential elections.

The reasoning for territories’ disparate treatment comes from Supreme Court rulings from the early nineteen-hundreds, which became known as the Insular Cases. As Justice Kennedy succinctly explained in Boumediene v. Bush: “[i]n a series of opinions later known as the Insular Cases, the Court addressed whether the Constitution, by its own force, applies in any territory that is not a State.” The Court then noted the delicate balance between imputing constitutional rights to territories versus respecting their existing laws, a tension which could result in confusion and instability. To this end, the Insular Cases Court came up with “…the doctrine of territorial incorporation, under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories.”

Political Attire Bans: What Can You Wear When You Vote?

Election Law Society · November 21, 2018 ·

By: Samantha Becker

On June 14, 2018, the Supreme Court invalidated a Minnesota law that prohibited wearing any “political badge, political button, or other political insignia” inside a polling place on Election Day.” The ban was interpreted to cover a variety of attire, such as t-shirts, buttons, and hats, and versions of the law had been in place for over a century. In a 7-2 decision, with Chief Justice John Roberts writing for the majority, the Court ruled that the Minnesota political attire ban was unconstitutional.

Federal Court Ruling Creates Chaos for North Carolina Primaries But There May Be a Solution

Election Law Society · January 18, 2017 ·

By: Blake Willis

Election litigation has experienced a new spike in recent years, with many states being involved with litigation over redistricting plans, Voter I.D. laws, and other ballot access issues. Since the inception of litigation under the Voting Rights Act of 1965 (VRA), there has been a consistent concern that federal courts should not be involved in determining the policies of voting, re-districting, and other related issues. Cases such as plurality opinion Davis v. Bandemer express such concerns, stating that partisan gerrymandering concerns are not justiciable, and that opening the door for federal courts to examine similar claims may set a dangerous precedent. In Veith v. Jubelirer, Justice Scalia echoed this sentiment, arguing that it is an increasingly difficult task for courts to determine what the predominant factor for drawing a district line may be. The expanding jurisprudence from both partisan and racial gerrymandering cases proves this argument may hold some validity, as evidenced by courts’ disagreement over the correct standard to apply, what the evidentiary standard should be, and who the burden of proof rests upon, as just a few examples. Although this litigation has been ongoing for decades, it is by no means near reaching an end.

Linda Greenhouse Speaks at William & Mary School of Law

Election Law Society · September 27, 2016 ·

By: Caiti Anderson & Kelsey Dolin

William & Mary Law School had the pleasure of hosting Linda Greenhouse on September 22. Ms. Greenhouse is a Pulitzer Prize winning columnist for the New York Times who has covered the Supreme Court for thirty years.

She is also a Senior Research Scholar in Law, Knight Distinguished Journalist in Residence, and Joseph Goldstein Lecturer in Law at Yale Law School, where she teaches various courses on the Supreme Court. Her books include Becoming Justice Blackmun, Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court’s Ruling, The U.S. Supreme Court: A Very Short Introduction and The Burger Court and the Rise of the Judicial Right (written with Michael J. Graetz).