Justices block extension of absentee ballot deadline in Wisconsin

With an order that ended a day marked by twists and turns in the dispute over Wisconsins plan to hold an election tomorrow, the Supreme Court tonight granted a request by the Republican National Committee and the Republican Party of Wisconsin to block a lower-court order that had extended the deadline for absentee ballots to be submitted. Tonights ruling by a sharply divided court means that in-person voting will go on tomorrow as scheduled; absentee ballots will be counted as long as they are either received or postmarked by tomorrow. At stake are the delegates in the states Democratic presidential primary, but also a wide range of state and local races, including a seat on the states highest court.

The dispute came to the Supreme Court on Saturday, two days after U.S. District Judge William Conley extended the deadline for absentee ballots. Conley reasoned that the COVID-19 crisis had created a huge backlog of requests for absentee ballots that would make it difficult (if not impossible) for most voters to receive an absentee ballot and return it by election day. Citing concerns about voter fraud, the Republican National Committee and the Republican Party of Wisconsin asked the justices to block that order and instead make clear that the deadline was extended only for ballots that were postmarked (or otherwise delivered) by April 7.

The plaintiffs in the case, which include the Democratic National Committee and the Democratic Party of Wisconsin, responded on Sunday. They urged the court to leave the April 13 deadline in place, warning them that reinstating the April 7 deadline would disenfranchise hundreds of thousands or more Wisconsin voters and force others to go to the polls, which could exacerbate the unfolding COVID-19 public health disaster.

For a brief stretch earlier today, it appeared that the Supreme Court might be able to stay above the fray, after Wisconsin Governor Tony Evers issued an executive order that suspended the in-person voting scheduled for tomorrow until June 9, while leaving open the possibility that the state legislature and Evers could agree on an alternative. But Republicans in the states legislature went to the Wisconsin Supreme Court this afternoon, asking that court to overturn Evers order. By a vote of 4-2 with Justice Daniel Kelly, who is up for reelection, recused the state supreme court quickly blocked Evers order suspending in-person voting.

With the state supreme courts ruling, the Supreme Courts disposition of the Wisconsin Republicans stay request once again took center stage. In an unsigned opinion, the majority stressed that it was not weighing in on the wisdom of Wisconsins decision to go ahead with tomorrows election despite the pandemic or whether other reforms or modifications in election procedures in light of COVID-19 are appropriate. Instead, the majority emphasized, the question before the Court is a narrow, technical question about the absentee ballot process.

For the majority, [e]xtending the date by which ballots may be cast by votersnot just received by the municipal clerks but cast by votersfor an additional six days after the scheduled election day fundamentally alters the nature of the election, particularly because the plaintiffs had not even asked the district court to do so. By changing the election rules so close to the election date, the justices continued, Conley had run afoul of the Supreme Courts repeated admonition that lower federal courts should ordinarily not alter the election rules on the eve of an election. That change was particularly problematic, the majority continued, because it would require election officials to refrain from disclosing election results until all the absentee ballots were received on April 13; if any information were released during that time, the majority warned, that would gravely affect the integrity of the election process.

Justice Ruth Bader Ginsburg dissented, in a six-page opinion that was joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. Ginsburg pushed back against the majoritys suggestion that the dispute hinged on a narrow, technical question. Instead, she contended, the question before the justices was whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. While making clear that she did not doubt the good faith of her colleagues in the majority, Ginsburg expressed concern that tonights order will result in massive disenfranchisement. A voter cannot deliver for postmarking, Ginsburg argued, a ballot she has not received. Yet tens of thousands of voters who timely requested ballots are unlikely to receive them by April 7. The Courts suggestion that the current situation is not substantially different from an ordinary election, Ginsburg continued, boggles the mind. As a result of tonights order, Ginsburg concluded, Wisconsin voters will have to choose between going to the polls, endangering their own and others safety, or los[ing] their right to vote, through no fault of their own. That is a matter of utmost importance.

This post was first published at Howe on the Court.