Emergency Episode: RNC v. DNC

On a special episode of 5-4, Peter (@The_Law_Boy), Rhiannon (@AywaRhiannon), and Michael (@_FleerUltra) talk about the Supreme Court’s decision to block the state of Wisconsin from accepting late absentee ballots in the midst of the COVID-19 pandemic.

Hi, fuck the Supreme Court, hi


00:10 Peter: Folks, welcome to an emergency broadcast of 5-4. I am Peter, here as the law boy, I am here with Michael...

00:20 Michael: Hey, everybody.

00:22 Peter: And Rhiannon.

00:22 Rhiannon: Hi. Fuck the Supreme Court, hi.

00:24 Michael: That's right.

00:25 Peter: Yeah. And we are here to talk about the aptly-titled RNC v. DNC, the case dropped by the Supreme Court just a couple of days ago on Monday, April 6, concerning Wisconsin's elections.

00:46 Michael: I don't want to step on you really quick, but just for our less politically-minded listeners, if we have any, RNC is the Republican National Committee and the DNC is the Democratic National Committee, just so we're clear.

00:57 Peter: Right. Also, thanks for listening.


01:02 Peter: Very fascinating. So this comes down 5-4 along the usual lines. The elections in question, are in Wisconsin, Democratic primary going on in various statewide and local races, including a race for the Wisconsin Supreme Court, an elected position in Wisconsin. Wisconsin statewide elections occurred Tuesday, April 7th. Absentee ballots were due to be received that same day. However, given the ongoing COVID crisis, the DNC and some community organizations and voters applied for a preliminary injunction extending the deadlines about a week for absentee ballots. On April 2nd, the District Court issued an order allowing, among other things, the counting of all absentee ballots as long as they were received by April 13th, a six-day extension of the deadline, and the Court also held the Wisconsin Elections Commission could not release results until the 13th.

02:10 Peter: So the Republican National Committee filed for a stay of that order with the Seventh Circuit, the appellate court, who declined it. They then applied to the Supreme Court, who granted it, and held that absentee ballots would only be accepted if they were postmarked by April 7, the day after the decision. And this caused a bit of a stir due to the fact that it is reducing absentee voting in the middle of a global pandemic, the likes of which no one alive has ever seen.

02:51 Michael: There are literally people who've requested and not yet received absentee ballots in Wisconsin.

02:55 Rhiannon: Right.

02:56 Peter: Yep, yep, and the primary reasoning used by the Court here is that the injunction violates a principle established in the 2006 case Purcell v. Gonzalez, that lower courts "should ordinarily not alter the election rules on the eve of an election." And I cannot fucking express how fundamentally stupid the reliance on this principle is here. First of all, the principle is that ordinarily lower courts should not alter election rules near an election, which inherently, I think, means that in extraordinary circumstances, a court might be able to. And the court doesn't even investigate this concept a little bit, it acts as if it's like a hard and fast rule, like, Sorry, you can't... The court can't mess with election rules on the eve of an election. Doesn't investigate a little bit what the boundaries of this rule might actually look like.

03:58 Peter: And my theory, my position, and I think, not to speak for you guys, but maybe the position of this podcast, that if a global pandemic doesn't qualify as extraordinary circumstances for these purposes, then nothing does. It's fucking ludicrous, and I can't tell you how little time the Court spends thinking about this, and they just breeze past it like it's this impenetrable rule. It's just a fucking stupid principle they borrow out of a case from 15 years ago and act like this is like... This is the will of God.

04:36 Rhiannon: Right. And you know what, I've been preoccupied with this shit all day long with John Roberts' bullshit, and the biggest injustice to me about this case is that I am on a podcast and yet on the podcast, I can't tell Chief Justice John Roberts to fucking pull up. And if I need to... He's lucky I don't fucking live in DC, because I can't say on this podcast that if I lived in DC and I saw him, it would be fucking on-site because Justice Roberts needs his ass kicked. He needs his ass kicked, but I can't say that on this fucking podcast, and I think that's extremely unjust.

05:17 Peter: And that's your notice, John Roberts, please pull up. If you're listening to this podcast... Rhiannon, please try to say things that we can keep in the podcast.

05:37 Michael: Look, the entire point of not intervening in elections in the last minute is according to Purcell itself to reduce voter confusion, which risks like disenfranchising or discouraging turn-out. But here, reinstating a prior deadline on the literal eve of the election achieves the opposite ends, like...

06:02 Peter: Insanely confusing.

06:04 Michael: More confusing and makes it harder to vote, making it less likely a lot of people vote.

06:10 Peter: Yeah, not to mention that the actual rule here was confusing enough that although it's like a three-page decision by the Roberts Court, we had to have a 20-minute conversation before... Before the podcast started to get it straight. It's very convoluted, and we won't get into this super gritty details about what exactly is going on here, but the Roberts Court was like making up rules about postmarking as opposed to the date that something needs to be... An absentee ballot needs to be received. It's all very convoluted and hard to follow, and we're trying to follow it. If you're just a fucking voter in Wisconsin, you're hopeless.

06:48 Rhiannon: Yeah, and I think our girl, Ruth, our girl, Ruth, she does a pretty good job at responding to this in the dissent, so Justice Ruth Bader Ginsburg is writing in dissent, and she basically says like, look, the District Court was responding to obviously an extremely rapidly changing public health crisis, and if intervening so close to the election is a problem, then the Supreme Court doing it even closer to the election, that's more of a problem. And really, that's it. That's the way to distill it.

07:24 Peter: Obviously true. And Roberts just said like, yeah, but we had to, because the District Court intervened. But like the District Court intervened in the middle of a fucking global pandemic six days prior to the election, something along those lines, five days prior to the election, and obviously, all you're doing is making it more confusing, and if your concern is actually the confusion of the voters, then you might just say, well, look, this was a little bit confusing, but there's nothing better to do here, which I think is what the Court had to do, right.

07:55 Michael: Right, like the whole principle, the Purcell principle is just that you don't want to change the circumstances of an election. But here the circumstances are changing, no matter what, like that's it.

08:05 Peter: Yes. You can't pretend the fucking pandemic isn't happening.

08:10 Michael: Right, in brass tacks terms, like in Milwaukee, which has almost like a fifth of the state's population, I think 16% of the state's population, something like that. They typically have 180 polling locations. They have five. They have five for this election, it's like... It's almost zero. That is pretty fucking close to none, because they couldn't find poll workers.

08:35 Peter: So the court says that this is a "narrow technical question," and I genuinely wonder if they understand what the word technical means, because a proper evaluation of this standard would involve weighing the interests on both sides on, one, the principle of avoiding interference in state elections; on the other, the negative impact on the election itself of prevent of... Like the chaos ensuing from allowing an election to proceed in circumstances where there's a global pandemic where voting it gonna be massively suppressed; and again, the Court doesn't weigh the interests at all, right? And like I mentioned, if the law says... If the law said that courts could never intervene in state elections, that would be a narrow and technical rule, right, but what's really happening here is that the rule is quite flexible and holistic, the rule is saying ordinarily courts should not interfere with elections, and whether something is ordinary or not is not a technical question. Sorry, I know that the conservatives love to find a technicality, but this just isn't one.

09:48 Rhiannon: Yeah, and I think the majority opinion, which is... It's per curiam, right?

09:53 Peter: Yes.

09:55 Rhiannon: So the majority opinion, which is per curiam, which means that nobody signs on to the majority opinion to say this is the one Justice that's writing it, but something the majority says is that the nature of an election is altered because you change the deadline to vote, and this is how we know that formalism isn't a prescriptive intellectual framework, it's a tool and they weaponize it. The conservatives weaponize it, right? So they act like they're obsessed with a deadline here, like they were in Bush v. Gore, if you remember the Supreme Court one time just decided who the fuck was gonna win a presidential election for all of us. And on the one hand, the conservatives, like they can and they will do absolutely everything in their power to entrench political power in their party, they'll suppress votes, they will gerrymander the shit out of districts, they will gut the Voting Rights Act. Right, and they'll turn around and say to your face at the same time that what's important about elections is actually just the day that it happens, but like, bitch, it's not fucking Christmas. The nature of an election is not altered because you change the deadline to vote, the nature of elections is that people fucking vote, they can vote. That's what an election is.

11:09 Peter: The Court also talks about how election results would effectively begin to leak, meaning that if the election is sort of ongoing from the 7th through the 13th and absentee ballots are still allowed, election results would begin to get out, right, exit polling or whatever it might be would get out, and that would jeopardize the integrity of the election, because people would be sending their ballots having seen the early results. Does a dissent actually sort of assumes that this is true. I think they rightfully say that it's stupid, but they do sort of assume that it's true on its face, I don't actually think it's true on its face. I don't see why that would jeopardize the integrity of an election. It seems to me like people having more information about an election as they vote would do the opposite.

12:00 Peter: And again, they don't engage with the other side of this, which is that eliminating absentee ballots past a certain date and maximizing in-person voting during a fucking viral pandemic, obviously also jeopardizes the integrity of an election.

12:18 Rhiannon: Absolutely. And I think actually, regardless of whether or not exit polling or early results being released would affect the election, I think like the District Court dealt with that by just by ordering results not to be released until the 13th, right. The whole fucking argument of the risk of exit polling and early results being released and that jeopardizing the integrity of the election, that reminds me a lot of Bush v. Gore, where they said that the recount couldn't move forward in conjunction with the requirements of equal protection without substantial additional work. Remember that? Bush was like, "Do the work then." The District Court did the work, so there's this risk and we can mitigate it by doing this. Okay.

13:07 Michael: Right. They act like it's like a big hardship, like, oh, it's involving third parties not party to this law suit posing requirements on them and shit, but it's like there's a fucking memo from the Head of Elections in Wisconsin that's like, "Look, you can't release the results," and you distribute it, and that's whatever. It's done. They were ready to go.

13:29 Rhiannon: Right, right, exactly.

13:31 Peter: So, the majority spends the end of the decision being defensive about its own position, the majority's position, and they say this: "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 and election procedures in light of COVID-19 are appropriate. That point cannot be stressed enough." And it's like first of all, like we said, the question before the Court was not narrow, they're just making it narrow.

14:05 Peter: It's a broad and nuanced question its holding both directly disenfranchises tens of thousands of people and puts tens of thousands more at risk of getting a fucking virus that is ravaging this country and the rest of the world. I mean, look, this is sort of a doth protest too much situation, when the Court says something like this, you sort of know that they realize in some part of their brain that they're fucking up and they're like, "I can't express enough how much we're not trying to address COVID-19."

14:40 Peter: And this is the only time they mention it in the fucking majority opinion. They don't even talk about the reason that the injunction was requested, which is because of COVID-19. And Ginsburg's dissent, as usual, we said this in Shelby County, but this time she does it explicitly, it's perfect, except that she refuses to question the good faith of the conservative majority, and in this case, she explicitly says that she does not doubt their good faith.

15:13 Rhiannon: It's un-fucking believable. It is un-fucking believable.

15:17 Peter: I saw a couple of people say, "Maybe she's being tongue-in-cheek here," and I guess, first of all, it just doesn't read like that to me; second of all, it would be very weird to be tongue-in-cheek after a fucking entire career of taking this exact position very sincerely.

15:37 Rhiannon: Right. I know you want your queen to be like throwing shade or whatever, but no, she's actually just...

15:43 Peter: Yeah.

15:44 Rhiannon: This is actually just how she is.

15:44 Peter: Right. And the other argument I saw was, look, and you see this all the time in these discussions, but look, she's debating this stuff with these people every day, she's got dozens of cases with them, she doesn't want to kind of fall out of favor. And I guess my question would be, when do you think she's gonna fucking convince them, right? When is her charm and her refusal to call them out going to actually reap some rewards, because she's fucking 87 and it's not happening now. This is a situation where there is no reasonable way to come to the conclusion that the majority did. I'm sorry, there isn't. And whatever hack professors you see spouting off on Twitter about how this is actually very reasonable and it was a narrow technical question: Morons! Morons not interested in finding the truth, not interested in an interpretation of the law that makes practical sense for the people who live under it and whose lives are dictated by it, flat out. Look, we don't need to pretend that we don't know why the RNC intervened in this case and why the five conservatives just so happen to be on the side of voter suppression in every single significant case that comes before them, right?

17:06 Rhiannon: Right.

17:08 Peter: The Republican party exists as a relevant party in this country because of its ability to suppress the votes of the opposition. Not only is there ongoing voter purging, but in 2018, Democrats won the majority of the votes for State Assembly in Wisconsin; thanks to gerrymandering, Republicans won 65% of the seats to the Democrats' 35%.

17:34 Michael: It's not a democracy. You can't call it a democracy.

17:37 Peter: It's not. It's not. It is inherently a violation of whatever you might conceive of as the right to vote in this country. And I've talked about this on Twitter too, the Republican Justices, they themselves know that their own power is attributable to voter suppression efforts by the RNC and all of its affiliates, and this is their fucking thank you letter to them, and them acknowledging that there is no way for them to maintain power other than disenfranchisement of their opponents.

18:09 Rhiannon: Yeah, that's exactly right. And so just to highlight that point with some numbers out of Wisconsin, so like Michael said up top, the city of Milwaukee, for instance, is down from originally having 180 polling places, now to 5. And just to give some demographic information, so the population of Milwaukee is 26% black; however, that actually comprises 67% of all of Wisconsin's black voters, they live in Milwaukee, and that is layered with 97% of the polling places in that city having been shut down. So when you're talking about voting rights here, obviously and always talking also about a racial justice issue in this country, and then to layer on another sort of exacerbation, we are in the middle of a global pandemic, and 81% of the people who have died from COVID-19 in Milwaukee are black people.

19:09 Rhiannon: And so when you're telling people that voting is going to be this much harder, but you definitely have to do it in person or else your vote isn't going to count, but also you're putting your literal life at risk to do so, you're talking about massive problems with racial justice that are just fucking unacceptable.

19:31 Michael: Like we said at the top, in addition to the Democratic primary, there are some statewide elections on the ballot, a number of them, actually, but one that's particularly important is the Wisconsin State Supreme Court. And that's a big deal because so much right now relies for Republican control on their gerrymander, on their... Giving them a big majority in the legislature and a majority in the Supreme Court that will rubber stamp all their legislative bullshit, which they have engaged in a lot of.

20:07 Peter: I do want to get one point out here that I think is... It might be a little bit redundant, but the real question is, you have to ask yourself in these cases, especially a case like this is, what was the Supreme Court actually trying to accomplish here? Because if what they were trying to accomplish was to uphold the standard that was established in this Purcell case, that lower courts should not intervene in elections at the last moment, then you would think that it would have spent some time on why it was doing so and what the real value was. Instead, instead, what you see is an opinion that's incredibly defensive, that has almost no affirmative reasoning, and instead just sort of responds to the dissent to try to swipe it away, and if there was a real case to be made, they would have made it.

21:03 Peter: The fact is that there really isn't. All they can do is try to present this as a technical question, like we said, and pretend that it is one, and then just sort of close... Shut their ears and tell everyone to fuck off and wait until the fervor dies down. And this is a statement that they don't care about making an affirmative case, that they don't need to... They have a five Justice majority, and that's the end of it.

21:33 Rhiannon: That's right.

21:34 Michael: That's right.

21:38 Peter: Alright, that's it for our emergency pod. I hope you guys enjoyed us rambling about this without any preparation, this is what it sounds like, this is what us just wilding out the next day sounds like. So if this was terrible, just let us know. We'll be sure to respond appropriately.


22:03 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katia Kunkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at Chips and Wine, and our theme song is by Spatial Relations.

22:25 Leon: From the Westwood One Podcast Network.