By Robert Barnes,
The Supreme Court on Monday night rejected a pandemic-related request from Democrats and civil rights groups to extend the deadline for counting mail-in ballots received after Election Day in the battleground state of Wisconsin.
The vote was 5 to 3, with the court’s liberals in dissent.
Conservative justices said federal courts were interfering too much in election procedure choices that should be left to local officials.
“It’s indisputable that Wisconsin has made considerable efforts to accommodate early voting and respond to COVID,” wrote Justice Neil M. Gorsuch. “The district court’s only possible complaint is that the state hasn’t done enough. But how much is enough? … The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”
Justice Elena Kagan answered for the liberals, and included a reference to an opinion from the late Justice Ruth Bader Ginsburg when the court considered similar changes during the Wisconsin primary.
“Tens of thousands of Wisconsinites, through no fault of their own, may receive their mail ballots too late to return them by Election Day,” wrote Kagan, joined by Justices Stephen G. Breyer and Sonia Sotomayor. “Without the district court’s order, they must opt between ‘brav[ing] the polls,’ with all the risk that entails, and ‘los[ing] their right to vote.’ The voters of Wisconsin deserve a better choice.”
A district judge had originally ruled with the plaintiffs, and extended the deadline for six days. He accepted the argument that the coronavirus pandemic and the accompanying surge in mail voting demand changes to accommodate voters and ensure ballots are counted.
But the Republican National Committee, the Wisconsin Republican Party and the state’s majority-GOP legislature intervened to defend the existing deadline, and earlier this month a divided panel of the U.S. Court of Appeals for the 7th Circuit reinstated the requirement that mail ballots be returned by 8 p.m. on Election Day.
Judges Frank H. Easterbrook and Amy J. St. Eve — appointees of Presidents Reagan and Trump, respectively — wrote that decisions about how to cope with the effects of the pandemic are “principally a task for the elected branches of government.”
“For many years the Supreme Court has insisted that federal courts not change electoral rules close to an election date,” their opinion added.
Judge Ilana Diamond Rovner issued a sharp dissent, calling the situation facing Wisconsin voters “a travesty.”
“We cannot turn a blind eye to the present circumstances and treat this as an ordinary election,” wrote Rovner, an appointee of President George H.W. Bush. “Today, in the midst of a pandemic and significantly slowed mail delivery, this court leaves voters to their own devices. Good luck and G-d bless, Wisconsin. You are going to need it.”
The civil rights groups and Democrats say they were seeking only similar accommodations to those the Supreme Court approved in April during the state’s primary. Faced with a crush of requests for mail-in ballots the week before the primary, the court agreed that ballots postmarked by the primary date but received days afterward should be counted.
That action “resulted in approximately 80,000 ballots being counted that would have otherwise been rejected as untimely,” said a brief for the groups, which included Black Leaders Organizing for Communities.
The groups acknowledged that the Supreme Court is adverse to changes in election law made late in the process by federal judges. But they said the extension has no impact on voter behavior.
“The district court’s extension of the ballot receipt deadline cannot cause voter confusion or disenfranchisement because it has no effect on the deadlines applicable to voters,” the groups said in their brief to the Supreme Court.
On the other hand, “the district court found as a factual matter that the ballots of a substantial number of voters who follow all of Wisconsin’s rules will arrive after the current receipt deadline because of conditions caused by the pandemic, and the district court’s relief will allow timely cast ballots slowed down by these substantial pandemic-related delays to be counted.”
The Republican legislative leaders countered that “over the last six months, this court has made clear time and again that COVID-19 provides federal courts with no authority to re-write state election laws.”
The legislature’s decision not to change “Wisconsin’s exceedingly generous election laws … falls squarely within its broad authority ‘either to keep or to make changes to election rules to address COVID-19,’” said their brief, quoting from Justice Brett M. Kavanaugh’s opinion when the court turned down a Democratic request from South Carolina on a different voting law change.
While the court’s extension during the spring primary might have made sense, voters have already had time to make plans for the general election, the lawmakers said.
“Wisconsin law gives voters who may experience some mailing delays multiple avenues to cast their ballots — including two weeks of in-person absentee voting — than are available in most other states,” the leaders told the Supreme Court.
Early voting in the state has already begun. And the brief said that “Wisconsinites have already requested 1,384,184 absentee ballots, 1,371,557 have been sent, and 785,536 have already been returned.”
At the same time, spike in coronavirus cases that has turned the state into one of the country’s latest pandemic hot spots.
Elise Viebeck contributed to this report.