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On April 6, 2020, the Supreme Court of the United States (SCOTUS) overturned the State of Wisconsin’s efforts, in the midst of the Covid-19 pandemic, to allow six additional days for mail ballots in the April 7th State election to be received.  What is most mind-boggling about the conservative justices’ majority decision is the absence of any discussion of the factual circumstances (i.e., Covid-19 pandemic and most medical experts/epidemiologists’ instructions that the populace stay at home and certainly avoid any large gatherings) that precipitated the State’s efforts to avoid infringement of the right to vote in a pandemic.  As the dissent notes,  the Governor of Wisconsin on March 24 ordered Wisconsinites to stay at home until April 24 to slow the spread of the disease; the consequent surge in absentee ballot requests resulted in a severe backlog of ballots requested but not promptly mailed to voters.

The dissent, in contrast, in decision written by Justice Ginsburg, and joined in by Justices Sotomayor, Kagan and Breyer, serves the relevant facts up in a “nutshell” of the first sentence, to wit:

“The District Court, acting in view of the dramatically evolving COVID-19 pandemic, entered a preliminary injunction to safeguard the availability of absentee voting in Wisconsin’s spring election.”

The dissent also aptly describes the effect of the majority decision, as “to prevent voters who have timely requested absentee ballots from casting their votes.”

The dissent goes on to recount how the Wisconsin Elections Commission and the Seventh Circuit Court of Appeals declined to intervene; rather, it was the Republican National Committee which, on the day prior to the election, sought and received from SCOTUS a ruling which, in the language of the dissent, deprived “tens of thousands of absentee voters, unlikely to receive their ballots in time to cast them,…without a vote.”

Ginsburg actually uses the term “mind-boggling.”

It certainly is an anomaly for any court, far less SCOTUS, to issue a decision without grounding that decision in historical, factual circumstance. Neither addressed nor considered in the majority holding are the following factual realities and truths:  (1) that the district court was reacting to a grave, rapidly evolving public health crisis; (2) that the question and concern before the courts is “whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic;”  (3) whether the purposes of a fair election could be served by compelling voters to the choice of “braving the polls, possibly endangering their own and others’ safety, or to lose their right to vote through no fault of their own.”

Instead of squarely addressing an issue which likely will repeatedly recur including the November presidential election, the decision actually issued by the majority, without any factual basis, can readily serve a political rewriting of history and bodes ill for all citizens in this time of crisis in which Dr. Fauci has cautioned that it is not at all clear that balloting at the polls will be safe on Election Day.  But Trump’s  recent “retweeting” of a “Fire Fauci” tweet and his recently stated opposition not only to mail balloting but also to supporting the U.S. Postal Service at this critical time, match his and his party’s efforts to suppress the vote as much as possible.  As Brent Larkin, an incredulous reporter with has commented, “In a fair fight, Trump can’t win re-election. That’s why this malignant man [[1]] and his Republican agents in battleground states will do whatever it takes to steal it”—to our collective misfortune, with the assist of SCOTUS.

[1] The sitting (or golfing) president doesn’t even understand the basic tenets of federalism leaving health and safety matters to the authority of the States.  Today he’s even tweeting dumb “Mutiny on the Bounty” threats against the governors to whom he ceded by inaction the duty to defend the citizenry.