Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: Why, Wisconsin?
Date: April 11, 2020

Episode Overview

This episode examines the chaotic Wisconsin spring primary held in the midst of the COVID-19 pandemic, the U.S. Supreme Court’s controversial involvement in the state’s voting process, and broader challenges facing the American electoral system in 2020. Host Dahlia Lithwick speaks in-depth with Mark Elias, chair of the Perkins Coie Political Law Group and a leading expert in election law, about partisan battles over voting rights, the breakdown of democratic norms, and paths forward for preserving fair elections during unprecedented circumstances.

Key Discussion Points & Insights

The Real Threats to the 2020 Election (04:46–07:15)

• Elias dispels fears of President Trump “canceling” or moving the November election, explaining it cannot be shifted absent an act of Congress.
  • Quote: “The good news is Donald Trump can't cancel the election. He can't move the election…The only way that that date could move would be a new act of Congress and obviously that's not going to happen.” – Mark Elias [05:05]
• The bigger problem is that the election will proceed whether or not the country is prepared, risking a repeat—or worse—of the chaos seen in Wisconsin.

Federalism: Strength or Weakness in Elections? (06:15–09:26)

• Federalism and local control have traditionally limited larger abuses of power but now breed chaos, partisanship, and voter suppression at the state and local level.
• Elias argues norms underpinning democracy have eroded under Trump, especially the basic agreement that all eligible voters should be able to participate.
  • Quote: “What we've learned is that Donald Trump doesn't abide by those norms… Elections are no different.” – Mark Elias [07:15]

Erosion of Trust and Partisan Manipulations (09:26–11:34)

• The Republican Party’s focus on unsubstantiated voter fraud claims dates to the 2016 election, but the entire party now lends credence to these ideas.
  • Quote: "This is Donald Trump's Republican Party...when Donald Trump says, we have problems with vote by mail, you start to see state and local officials echo that." – Mark Elias [10:59]

Why Wisconsin Matters: A Canary in the Coal Mine (11:34–16:42)

• Wisconsin’s election laws and political environment—extreme gerrymandering, restrictive voter ID, and partisan control—make it a national exemplar of voter suppression.
• The cycle of gerrymandering reinforcing restrictive voting rules is highlighted as "incumbent party protections."
• Partisan control of the Wisconsin Supreme Court is critical because it’s the one institution able to overturn voter suppression laws.
  • Quote: “All of these democracy principles are reinforcing...they are all aimed at the same goal, which is to put a thumb on the scale, to prevent everyone's vote from counting equally.” – Mark Elias [14:47]

The Twin Legal Fights and Supreme Court Involvement (17:54–24:07)

• Wisconsin's Democratic governor tried to move the election; the state Supreme Court (along partisan lines) blocked him.
• Federal litigation focused on the extension of absentee ballot deadlines leads to a series of court rulings:
  • Judge Conley (district court) allows ballots to arrive by April 13, rather than requiring an Election Day postmark.
  • The conservative 7th Circuit upheld this remedy, suggesting it was modest and reasonable.
  • The U.S. Supreme Court’s majority intervenes at the 11th hour, reversing the extension—despite claims to judicial modesty.
  • Quote: "If in fact your goal is to be just a neutral umpire...why get involved in that case? Why write an opinion?" – Mark Elias [20:55]

Mischaracterizations and Judicial Activism (24:07–29:50)

• The Supreme Court’s unsigned per curiam opinion is criticized for misrepresenting what relief litigants sought, and for being more interventionist than the lower courts.
  • Elias explains Judge Conley adopted a modest remedy, favoring ballots received by April 13, rather than rewriting the law to use a postmark deadline—a position the conservative 7th Circuit agreed with.
  • The Supreme Court imposed an unprecedented postmark requirement, disenfranchising more voters.
  • Quote: “When it came to sort of judicial creation of new elections law, it's actually the Supreme Court who does it. Not Judge Connally at the time.” – Dahlia Lithwick [28:48]
  • Elias replies: “100%. No question. No question.” [28:59]

The ‘Purcell Principle’ and Its Distortion (29:50–33:52)

• The Roberts Court invokes the “Purcell Principle” (courts shouldn’t change election rules close to the election for fear of voter confusion) to justify inaction—though, ironically, their intervention creates more chaos.
  • Elias argues the doctrine has been distorted: originally intended to shield voters from confusion, it’s now wielded as a sword to prevent courts from protecting voters.
  • The Court changes the rules itself at the last minute, creating more confusion, yet claims to be the “modest” actor.
  • Quote: “Purcell really has now been turned from a shield to protect voters...to a sword to essentially disenfranchise voters.” – Mark Elias [31:17]

Real-World Impact: Mass Disenfranchisement in Wisconsin (33:52–36:23)

• Elias foresees tens of thousands disenfranchised, especially in urban and minority communities, due to polling place closures and absentee ballot issues.
  • Quote: “It's going to be more than thousands. It's going to be tens of thousands. It could be even higher than that.” – Mark Elias [34:49]

Damage to Democratic Faith and Judicial Integrity (36:23–39:48)

• Lithwick worries (and Elias agrees) that such chaotic and unfair elections breed public cynicism and apathy, undermining trust in courts and the electoral process itself.
  • Quote: "If the net effect of this isn’t simply...widespread vote suppression, but also massive failure of confidence in what is the point in voting...that will be devastating.” – Mark Elias [37:31]
• Elias cautions the Supreme Court about the optics of a case titled “Republican National Committee v. Democratic National Committee,” warning that overtly partisan judicial rulings damage institutional legitimacy.

Bright Spots & Legal Victories (39:52–43:36)

• Elias recounts recent legal wins in Georgia (signature matching reform), Florida (early voting on college campuses), and New Hampshire (striking down a college voter suppression law).
  • Courts, despite setbacks, remain the best hope for protecting voting rights.
  • Quote: "Courts are still the best hope we have, despite what happened in Wisconsin, courts are still the best hope we have to protect voting rights." – Mark Elias [42:47]
• He warns the RNC’s efforts in Wisconsin foreshadow intensified national fights in November 2020.

Recommendations for Securing the 2020 Election (43:36–47:48)

• Multiple solutions must be pursued:
  • Federal funding for states and the postal service is essential.
  • States should recruit younger poll workers (e.g. offering college credit, using civil servants).
  • Expand curbside voting and maintain safe in-person voting options.
  • Voting by mail must be made accessible, but not the only mode.
  • Practical reforms—“not ideological”—should be urgently implemented at the state level.
• Quote: “Nobody wins when a city goes from having 180 some odd polling locations to five… the system really fails.” – Mark Elias [47:25]

Final Thoughts: Urgency, Realism, and Hope (47:48–50:00)

• Elias urges listeners not to give up: advocacy, public pressure, and court battles are still crucial and can have impact.
  • Quote: “I'm not pessimistic about holding free and fair elections in November. I'm realistic.” – Mark Elias [48:35]
• Local election officials (Democrats and Republicans alike) want elections to succeed—citizen engagement and refusing to despair are key.

Notable Quotes & Memorable Moments

• On the Supreme Court’s intervention:
  “If in fact your goal is to be just a neutral umpire...why get involved in that case? Why write an opinion?”
  — Mark Elias [20:55]
• On the breakdown of democratic norms:
  “Elections start with the assumption that everyone wants the same thing...And the problem we are facing is that the Republican Party under Donald Trump has simply deviated off that norm.”
  — Mark Elias [07:47]
• On the potential for disenfranchisement:
  “This is going to be among the largest, if not the largest, suppressive voting episode in my professional career. Just in terms of total numbers.”
  — Mark Elias [35:38]
• Advice for activists and voters:
  “I'm not pessimistic...I'm realistic...It's going to be a combination of Congress providing the funds and people keeping the pressure on this issue and not letting it fade into the background...”
  — Mark Elias [48:35]

Key Timestamps for Important Segments

• [04:46] – Can't cancel or move the 2020 election
• [07:15] – Collapse of election norms and Republican shift
• [12:47] – Wisconsin as outlier and template for voter suppression
• [16:42] – Partisan elections for state Supreme Court justices
• [20:55] – Supreme Court’s decision to intervene criticized
• [29:50] – Discussion of “Purcell Principle” and the Court’s sleight of hand
• [34:49] – Real-world impact: mass voter disenfranchisement
• [37:31] – Damage to trust in elections and the judiciary
• [39:52] – Recent legal victories on voting rights
• [44:46] – Steps states and Congress must take before November
• [48:35] – Closing advice: Be realistic and don’t give up hope

Tone and Language

• The conversation is urgent, forthright, and deeply informed, with both Lithwick and Elias displaying concern for democratic institutions but also a pragmatic awareness of partisan realities.
• Elias’s legal explanations are clear, concrete, and direct—he names partisan actors and judicial behavior without euphemism, but also points to practical solutions.

Summary

This episode delivers a meticulous, insider look at Wisconsin's 2020 primary as a warning for November’s general election, unpacking the legal mechanisms, political pressures, and judicial actions that threaten—or preserve—American democracy during crisis. Elias and Lithwick offer sobering insights, technical clarity, and a call for ongoing vigilance, creativity, and hope in the fight for free and fair elections.