Note: this piece was originally published on Reason, and was written by Checks & Balances member Jonathan H. Adler.
Most of the discussion over the Supreme Court’s decision to curtail a federal court order expanding the opportunity for absentee voting in the Wisconsin primary election has glossed over what may have been the most important question at issue: Was there a constitutional violation in the first place? This is an important question because if there was no constitutional violation, there was no basis for any federal court intervention in the first place, and the Supreme Court was correct to curtail the district court’s order. Indeed, if there was no constitutional violation, the Supreme Court arguably did not go far enough.
Over at Justia, Vikram Amar and Jason Mazzone make the case that there was not constitutional violation justifying federal court intervention. Therefore, as they see it, the Supreme Court reached the correct result, even if it did not adopt (what they think is) the best reasoning.
As Amar and Mazzone note, it is well-established that “‘even-handed restrictions’ promoting the ‘integrity and reliability of the electoral process itself’ satisfy constitutional standards,” even if they prevent some number of voters from casting ballots. Exogenous events, whether snowstorms or pandemics, may certainly justify legislative responses to make it easier to vote, but they do not produce constitutional violations.
Continue reading at Reason.