#politics  #centrism  #supremecourt  
Issue 67
April 19, 2020
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Our title would suggest that the subject of this week’s piece is former President John F. Kennedy. It is not. The subjects of our 67th issue are former Supreme Court justice, Anthony Kennedy and an important U.S. Supreme Court (SCOTUS) decision pertaining to the state of Wisconsin’s democratic primary.

While the judges who sit on the U.S. Supreme Court are brilliant legal scholars and accomplished professionals, they like many individuals have a particularly difficult time separating their legal opinions from their own prejudices. Presently, conservatives hold a one seat majority on the Supreme Court. (It is disheartening that we even need to preface this point; judges are expected to be apolitical.) Chief Justice John Roberts, Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh & Clarence Thomas represent the conservative block. Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor lean left. Consequently, many important decisions are rendered 5-4, across political lines.

Last week, yet another 5-4 decision was delivered, this time around voting technicalities in the state of Wisconsin. Unless somebody is a legal junkie or political hack deeply intertwined in the nuances of specific states’ voting laws, it would be an afterthought. Unsurprisingly, it went unnoticed in most of the country. However, the case was critical. And is a microcosm of why we desperately need centrist, open minded justices, especially on the Supreme Court.

What Happened

In plain English, devoid of legal jargon and other overly technical terms, the following is what transpired in Wisconsin: During the state primary, the Democratic National Committee (DNC) sought to extend the time that ballots could be postmarked / mailed-in beyond the state’s constitutionally mandated April 7th deadline. The crux of their argument was that voters should not have to risk heading to the polls during the apex of the coronavirus epidemic.

(Crucially worth noting is Republicans generally prefer a lower voter turnout, as it tends to help them in elections. Conversely, Democrats prefer a higher turnout at the polls. The reasons for which go well beyond the scope of this post.)

A district court granted the DNC relief; ballots could be postmarked by April 13th. Unsurprisingly, the Republican National Committee (RNC) sued to block the extension. The SCOTUS took up the case. Justice Brett Kavanaugh, the man who succeeded Anthony Kennedy, penned the majority’s 5-4 decision across political lines, in favor of the RNC. To that end, voters in the state of Wisconsin who did not postmark a ballot by April 7th were forced to go to the polls despite the heightened risk of communicating and or becoming infected with COVID-19.

Ideologically, SCOTUS was technically correct. The majority applied a pure “textualist” approach and simply followed the letter of the law: in the Wisconsin primary, ballots must be postmarked by April 7th. We agree, that is the law. However, we disagree with SCOTUS’s politicized decision.

What is more important to protect, a voting deadline as written in Wisconsin’s constitution (in this case, a difference of 6 days) or a citizen’s ability to exercise their cherished right to vote, their health, and the wellbeing and safety of others? We think it’s the latter. Most likely, so would have Anthony Kennedy.

Anthony Kennedy

Anthony McLeod Kennedy was appointed to the Supreme Court of the United States (SCOTUS) by President Ronald Reagan in 1988 and served until his retirement, in 2018. Before his tenure on the high court, Kennedy completed his undergraduate studies at Stanford and earned a law degree from Harvard. His professional accolades include serving in the Army National Guard, on the U.S. Court of Appeals for the Ninth Circuit, and as a professor of constitutional law.

While his academic record and professional accomplishments speak for themselves, what distinguished Anthony Kennedy as a truly special judge was his rare ability to cast aside his own bias’s when considering the cases before him. Indeed, Kennedy’s legal decisions were underpinned by the specifics of each case, even when those opinions were counter to his personal beliefs.

Kennedy was not easily pigeonholed ideologically; he had a reputation for looking at cases individually instead of deciding them on the basis of a rigid ideology…He issued conservative rulings during most of his tenure. However, Kennedy was also known for siding with the Court's liberal justices on high-profile social issues like same-sex marriage and abortion”

Kennedy leaned to the right. It would have been in his personal interest to adhere to the letter of Wisconsin’s constitution in strict form (remember, the GOP typically gets better results when voter turnout is low). But his opinions were case specific, irrespective of personal bias. And he allowed for a reasonable amount of leeway when interpreting the law, so long as the spirit of the law was upheld. In this case, allowing voters ~1 week longer to postmark ballots in order to protect them from being infected and/or communicating coronavirus and enabling them to exercise their vote is sensible and appropriate.

A Flawed Argument

The SCOTUS’ flawed decision accomplished one thing: it suppressed voter turnout. Conservatives often argue that the reason they are apoplectic about requiring citizens to vote in person is to mitigate fraud. At TQC, we are sensitive to that. Voter fraud would undermine the sanctity of our democracy. However, we reject the GOP’s argument. In our view, it is reasonable to assume that the underlying objective to adhere to punitive voting guidelines – especially in the middle of a global pandemic - is to lower the number votes cast.

Consider the following: ~335 million people live in the United States. Of those, ~260 million are of voting age and ~50% exercise their right to vote (in a general election). Anybody can cherry pick three or four cases of voter fraud in the context of ~30 million people voting. But the fact remains that voter fraud in America is extraordinarily rare. “Out of the 197 million votes cast for federal candidates between 2002 and 2005, only 40 voters were indicted for voter fraud. Only 26 of those cases, or about .00000013 percent of the votes cast, resulted in convictions or guilty pleas.” Simply put, a person has a greater chance of being struck and killed by lighting on their way to the polls, than is to be accused, let alone convicted, of voter fraud mailing in a ballot.

We are not naïve to think the DNC’s arguments about public health are completely altruistic either. Democrats benefit from robust turnout at the polls. However, Dems are obfuscating their primary objective (getting voters to the polls) by arguing that voters are safer in a pandemic if they have more time to mail in a ballot. Any reasonable person would agree, they are. Republicans are obfuscating their primary objective by arguing that allowing more time to vote by mail (suppressing voter turnout) mitigates fraud. Exhaustive evidence clearly confirms, it does not. This should be carefully considered.

Precedent

Politicians in Texas are now arguing about voting by mail. Republicans are, per usual, touting their (unfounded) concerns about voter fraud. Democrats argue that curtailing vote by mail will suppress turnout (amid the COVID-19 epidemic, it will). If this process is replicated on a nationwide basis, it could become particularly problematic if the coronavirus is still raging during the general election, in November. Lower courts might cite the SCOTUS decision in Wisconsin as the basis for their own interpretation, limiting vote by mail. That would undermine the will of voters across America.

As our dedicated readers know, sometimes we side with our friends on the left; just as often we align ourselves with our conservative leaning colleagues. In this case, we side with the DNC in Wisconsin. More than likely, so would have Anthony Kennedy. He was a self-reflective, malleable, centrist judge. He was reasonable and fair. Like everybody, he held predispositions and personal bias’. But Kennedy took particular care to rule based on the particulars of each case. And took special care to not write opinions that might be technically correct when pertaining to a tree, but wrong when encompassing the entire forest. These are exceptional circumstances that warrant a reasonable, holistic approach when interpreting and applying the law.