Supreme Court or Supreme Election Board?

Three weeks ago, I asked “Will Courts Be Changing Voting Rules Right Up to Election Day?”  Since then, some of the more extreme examples I mentioned in that post have been walked back.  On Monday night, the Supreme Court upheld, by a 5 to 3 vote, a decision by the Seventh Circuit Court of Appeals that overturned a federal district court decision in Wisconsin to extend the period for getting absentee ballots back to the election board until six days after Election Day.  (Wisconsin law provided that absentee ballots had to be received by Election Day.)   

What I wanted to talk about here are a couple of things Justice Elena Kagan said in her dissent in that decision.  Justice Kagan said: “As the COVID pandemic rages, the Court has failed to adequately protect the Nation's voters." and "[T]he Court's decision will disenfranchise large numbers of responsible voters in the midst of hazardous pandemic condition.”

Two comments.  First, in saying that “the Court has failed to adequately protect the Nation’s voters,” Justice Kagan seems to be saying that it is the Supreme Court’s job to serve as a national election board to make sure the right decisions are made on election procedures.  While other branches and other levels of government can make the initial decisions, Justice Kagan would have the Supreme Court (and the federal courts below it) take on the job of changing any of those decisions that it deems to be not proper.  I disagree.  I do not think the Supreme Court’s job is to serve as a Supreme Election Board.  Making sure federal laws are followed and the Constitution is followed; that is the job of the Supreme Court.  Running elections is not.

Second, Justice Kagan claims “[t]he Court’s decision will disenfranchise large numbers of responsible voters”.  I assume she is saying this because Wisconsin law allows a voter to request an absentee ballot up through the Thursday before the election and because requests received at the last minute this year have a good chance of not getting processed in time to get the ballot to the voter and then back to the election board on or before Election Day.  In my view, “in the midst” of a pandemic, as Justice Kagan says, how can any voter who waits until the Thursday before Election Day to request an absentee ballot be considered “responsible”?  I understand Wisconsin law allows that, but to think that you could request an absentee ballot five calendar days before Election Day, receive the ballot, and mail it back so it is received by the election board on or before Election Day is not responsible.  It has been obvious for weeks that, because of the pandemic, there would be record numbers of absentee voters this year and that, if you wanted to vote absentee, you needed to apply for a ballot early and return it early.  That’s what “responsible voters” do.