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Law360 (April 7, 2020, 11:46 PM EDT ) Any hopes that the ongoing coronavirus pandemic would bridge ideological differences on the U.S. Supreme Court were swiftly dashed Monday evening when the justices bitterly split 5-4 over emergency backup plans for Wisconsin's elections, potentially the first of several COVID-19 cases that could reach the high court.
Around 7 p.m. Monday, the Supreme Court blocked a district judge's order extending the deadlines for Wisconsin voters to mail absentee ballots in light of the threat that COVID-19 poses to in-person voting. Allowing voters to mail in ballots until April 13 — six days after Tuesday's contests, which included a presidential primary — "fundamentally alters the nature of the election," the Supreme Court's five conservatives said in an unsigned per curiam opinion.
Justice Ruth Bader Ginsburg penned a stinging dissent on behalf of the court's four liberals. The conservative majority's decision to strike down the extension on the eve of the elections "boggles the mind" and could "result in massive disenfranchisement," she said. Tens of thousands of people who requested absentee ballots in a timely manner "will be left quite literally without a vote" because of a backlog that made the extension necessary, she said.
To some court watchers, the 5-4 decision was a bleak reminder that the court's deep ideological differences persist even through something as dire as a deadly pandemic.
"One might hope the justices would find a way to come together in this time of crisis," said UCLA law professor Adam Winkler. "Instead, we saw the same old ideological 5-4 split typical of election cases at the high court."
Ilya Shapiro of the Cato Institute agreed with the result reached by the conservative majority but lamented the impression left by the sharp split between the two sides.
"I don't think the court's ruling on the Wisconsin election has anything to do with the pandemic," he said. "It's business as usual — which is reassuring in a certain sense because it means our institutions are continuing to operate, without radically changing legal theories to suit an emergency. It's still unfortunate that the decision broke down the way it did, because it lends credence to the perception that law is no different than politics."
Wisconsin's election fiasco could be the first of several polarizing COVID-19 cases to reach the high court. A brewing battle over Republican attempts to restrict abortion access during the pandemic is also making its way through the court system.
By a 2-1 vote Tuesday, the Fifth Circuit upheld Texas Gov. Greg Abbott's executive order that, as interpreted by the state's attorney general, excludes abortion from the types of essential medical procedures that can continue during the coronavirus outbreak.
U.S. Circuit Judges Kyle Duncan and Jennifer Elrod, both Republican appointees, seemed satisfied with the state's rationale of trying to preserve medical resources during the pandemic.
"The bottom line is this," Judge Duncan wrote in his majority opinion, "when faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some 'real or substantial relation' to the public health crisis and are not 'beyond all question, a plain, palpable invasion of rights secured by the fundamental law.'"
U.S. Circuit Judge James L. Dennis, a Democratic appointee, dissented. "Unfortunately, this is a recurring phenomenon in this circuit in which a result follows not because of the law or facts, but because of the subject matter of this case," he said, citing the Fifth Circuit's ruling in another abortion case currently pending before the Supreme Court.
The Sixth Circuit reached the opposite result Monday, upholding a lower court order blocking Ohio's move to restrict abortion procedures during the crisis. A circuit split on these types of abortion restrictions could encourage the Supreme Court to weigh in.
Where some Republican states have clamped down on abortion amid the pandemic, some Democratic governors have faced pushback for restricting gun sales as part of emergency closures. Late last month, the Pennsylvania Supreme Court rejected a challenge from gun activists to the exclusion of firearm dealers from the types of essential businesses that could continue during the crisis. Three dissenting justices said the exclusion was "in clear tension with the Second Amendment to the United States Constitution."
Pennsylvania Gov. Tom Wolf has since allowed gun stores to reopen on a limited basis and the case now appears to be moot, but other civil liberties lawsuits, including a similar challenge to New York's exclusion of gun dealers from essential businesses, have been cropping up around the country.
On Monday, for instance, the American Civil Liberties Union filed a lawsuit in Puerto Rico challenging the territory's aggressive COVID-19 measures, which includes a strictly enforced curfew and mask-wearing requirements.
UCLA's Winkler said the pandemic has raised "a huge number of interesting legal issues" that the Supreme Court has yet to consider, given that "the last serious era of quarantine was over a century ago."
"One thing for sure is that the Wisconsin case won't be the last coronavirus case at the Supreme Court," he said.
--Editing by Aaron Pelc and Emily Kokoll.
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