JOIN USUS Supreme Court won’t extend Wisconsin's deadline for mailed ballots
The Supreme Court refused Monday to revive a trial court ruling that would have extended Wisconsin’s deadline for receiving absentee ballots to six days after the election.
The vote was 5-3, with the court’s more conservative justices in the majority. As is typical, the court’s brief, unsigned order gave no reasons. But several justices filed concurring and dissenting opinions that spanned 35 pages and revealed a stark divide in their understanding of the role of the courts in protecting the right to vote during a pandemic.
The ruling was considered a victory for Republicans in a crucial swing state, which polls have shown President Donald Trump trailing in after winning by about 23,000 votes in 2016.
The Democratic Party of Wisconsin immediately announced a voter education project to alert voters that absentee ballots have to be received by 8 p.m. on Election Day, Nov. 3. “We’re dialing up a huge voter education campaign,” Ben Wikler, the state party chair, said on Twitter. The US Postal Service has recommended that voters mail their ballots by Oct. 27 to ensure that they are counted.
The ruling came as Trump continued to attack mail-in voting, which Democrats are using far more heavily this year. In a tweet late Monday, Trump falsely declared that there were “Big problems and discrepancies with Mail In Ballots all over the USA. Must have final total on November 3rd.” (Twitter quickly put a warning label on the tweet.)
The ruling was also the latest in a flurry of election-year decisions by the court that have mostly upheld voting restrictions, and the Trump campaign and its Republican allies are seeking similar restrictions on ballot deadlines in other states. Cases from North Carolina and Pennsylvania are pending before the court, the latter a second attempt after a 4-4 deadlock last week. Justice Amy Coney Barrett, who was confirmed and sworn in to the Supreme Court on Monday night, could cast the decisive vote in that case.
In Monday’s opinions, divisions over voting rights that had been hinted at in some of the previous rulings came more clearly into the open.
In one concurring opinion, Justice Neil Gorsuch, joined by Justice Brett Kavanaugh, wrote that federal trial judges should not alter state voting rules when an election is looming. “Elections must end sometime, a single deadline supplies clear notice, and requiring ballots be in by Election Day puts all voters on the same footing,” Gorsuch wrote.
“No one doubts that conducting a national election amid a pandemic poses serious challenges,” he wrote. “But none of that means individual judges may improvise with their own election rules in place of those the people’s representatives have adopted.”
In a separate concurrence, Kavanaugh wrote that “the Constitution principally entrusts politically accountable state legislatures, not unelected federal judges, with the responsibility to address the health and safety of the people during the Ciovid-19 pandemic.”
In earlier litigation concerning Wisconsin’s primary elections in April, the court required that ballots be mailed and postmarked by Election Day. But it did not disturb a similar six-day extension for receipt of the ballots, which had not been challenged in the case then before it.
In dissent Monday, Justice Elena Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, said the state’s experience in April was telling.
“That extension of Wisconsin’s ballot-receipt deadline ensured that Covid-related delays in the delivery and processing of mail ballots would not disenfranchise citizens fearful of voting in person,” Kagan wrote. “Because of the court’s ruling, state officials counted 80,000 ballots — about 5% of the total cast — that were postmarked by Election Day but would have been discarded for arriving a few days later.”
Chief Justice John Roberts filed a brief concurring opinion explaining why the Wisconsin case differed from the one from Pennsylvania in which the justices deadlocked over whether the state’s Supreme Court could extend the deadline for mailed ballots by three days.
“While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes,” the chief justice wrote. “Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin.”
A divided three-judge panel of the federal appeals court in Chicago had blocked the trial court’s ruling in the Wisconsin case, saying it came too close to the election and amounted to judicial interference in “a task for the elected branches of government.”
The Supreme Court’s order Monday let the appeals court’s ruling stand, restoring a hard deadline for accepting absentee ballots to 8 p.m. Nov. 3, when the polls close.
The appeals court majority, in an unsigned opinion joined by Judges Frank H. Easterbrook and Amy J. St. Eve, said the trial judge’s extension was improper.
“Voters have had many months since March to register or obtain absentee ballots; reading the Constitution to extend deadlines near the election is difficult to justify when the voters have had a long time to cast ballots while preserving social distancing,” the judges wrote. “The district court did not find that any person who wants to avoid voting in person on Election Day would be unable to cast a ballot in Wisconsin by planning ahead and taking advantage of the opportunities allowed by state law.”
In dissent, Judge Ilana D. Rovner responded that “no citizen should have to choose between her health and her right to vote.”
“The inevitable result of the court’s decision today will be that many thousands of Wisconsin citizens will lose their right to vote despite doing everything they reasonably can to exercise it,” Rovner wrote. “This is a travesty.”
In his concurrence on Monday, Kavanaugh criticized what he called Kagan’s “rhetoric of ‘disenfranchisement.’”
She responded that she had meant the word literally, not rhetorically.
“During Covid, the state’s ballot-receipt deadline and the court’s decision upholding it disenfranchise citizens by depriving them of their constitutionally guaranteed right to vote,” she wrote. “Because the court refuses to reinstate the district court’s injunction, Wisconsin will throw out thousands of timely requested and timely cast mail ballots.”