OPINION:
The fights this week at the Wisconsin state Supreme Court and at the U.S. Supreme Court ahead of the April 7 Wisconsin primary are prime examples of what can best be described as the “outcome-based adjudication” favored by liberal judicial activists. (It’s not to be confused with outcome-based education.)
The plaintiffs — and the judges in the minority in both cases — were prepared to willfully disregard the clear language of both the state and federal constitutions (and Wisconsin state law) to adjudicate in favor of their desired outcomes in those cases.
This “outcome-based adjudication” mentality derives from the flawed notion, advanced by liberal judicial activists, of a constitution (state or federal) being a “living, breathing” (i.e., malleable as Silly Putty) document to be interpreted as needed to arrive at the desired outcome of their choosing.
There’s been a lot of angry second-guessing and finger-pointing following the Wisconsin primary debacle, with Democrats and many in the media (but we repeat ourselves) blaming the Republican leadership of the state legislature for not capitulating to Democratic Gov. Tony Evers’ unilateral — and unconstitutional — 11th-hour executive order to postpone the primary.
The election went ahead as originally scheduled despite the COVID-19 “shelter-in-place” orders, forcing would-be voters who had not requested and returned an absentee ballot to venture out to the polls.
The partisan finger-pointing was without merit. The state Supreme Court rightly overruled Mr. Evers, who — it should be noted — until about a week earlier was OK with the election going ahead as scheduled. He should have asked the legislature to act much sooner.
As such, the 4-2 majority of the Wisconsin Supreme Court got it exactly right: The state constitution had to be followed, the extraordinary circumstances of the pandemic notwithstanding. In dissent, Wisconsin state Supreme Court Justice Ann Walsh Bradley accused the court’s majority of “risking the health of our families, neighbors and friends.” Notice the lack of concern there for the rule of law.
Not unlike when President Obama unilaterally enacted so-called “DACA” protections for illegal-immigrant youths in June 2012 after repeatedly acknowledging he had no authority to do so, Mr. Evers clearly overstepped his bounds.
Nevertheless, the Wisconsin primary could have and should have been postponed, as was done in 17 other states. Mr. Evers is most — although not exclusively — at fault for waiting until just days before the vote to decide that conditions were not suitable for an election. The Republican legislative leaders also should have acted much sooner to change the date, but they didn’t, so the die was cast.
U.S. District Judge William Conley on April 2 rightly spurned a request by Democrats that he unilaterally postpone the primary, concluding that that authority rested with state officials. “As much as the court would prefer that the Wisconsin Legislature and Governor consider the public health ahead of any political considerations, that does not appear in the cards,” he wrote. “Nor is it appropriate for a federal district court to act as the state’s chief health official by taking that step for them.”
But the U.S. Supreme Court also got it right when it threw out Judge Conley’s follow-on decision, which had been upheld by the 7th Circuit Court of Appeals, that absentee ballots could be mailed for several days after the election and counted through April 13.
On the eve of the election, the Supreme Court’s 5-4 majority reinstated the requirement that absentee ballots be postmarked no later than Election Day.
Led by Justice Ruth Bader Ginsburg, the liberals on the high court castigated the majority for standing by state law and not rewriting it ad hoc as they would have done.
Justice Ginsburg’s dissent contended that the ruling meant that Wisconsin voters who had not already cast absentee ballots would “have to brave the polls, endangering their own and others’ safety, or they will lose their right to vote, through no fault of their own.”
But the end, however noble, doesn’t justify the means, as the unsigned majority opinion explained: “Extending the date by which ballots may be cast by voters — not just received by the municipal clerks, but cast by voters — for an additional six days after the scheduled election day fundamentally alters the nature of the election.”
Democrats and their media shills reflexively accused Republicans and the courts of “voter suppression,” but it’s a baseless charge. The state and federal constitutions cannot be cast aside for convenience’s sake, in favor of “outcome-based adjudication,” no matter how seemingly worthy the would-be outcome might be.
As such, the headline on The Washington Post’s April 8 editorial, “Wisconsin’s unsafe, undemocratic Election Day” was wrong. It may have been “un-Democratic,” but it was not undemocratic.
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