The Supreme Court won’t give Wisconsin voters an extra six days to submit absentee ballots after election day Tuesday, halting a lower court ruling last week that had extended that part of the voting because of the COVID-19 pandemic.
The sharply divided 5-4 decision, with the justices in the court’s conservative majority siding with the Republican National Committee and the state’s Republican lawmakers, marks the first of what could be many high court decisions related to changes in how states conduct elections amid health and social distancing concerns.
While other states have postponed in-person voting during the COVID-19 outbreak, Wisconsin is moving ahead with primary elections Tuesday and the state law requires absentee ballots to be received by that day.
Last week, amid coronavirus concerns, a federal judge ordered the state to accept absentee ballots as long as they are received by April 13.
The state’s Democrats told the Supreme Court that the pandemic has “wreaked havoc” on the state’s election, “driving poll workers and voters to stay away from the polls, dramatically escalating the number of requests for absentee ballots, and overloading Wisconsin’s absentee-voting process.”
The Supreme Court’s majority cast the issue as a “narrow, technical question” about the absentee ballot process. The majority said that the lower court’s “unusual” order to allow voters to mail their ballots after election day would “fundamentally alter the nature of the election by allowing voting for six additional days after the election.”
And the majority, in an unsigned opinion, stressed that it was not an opinion on "the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate."
The four liberal justices used a dissent to point out that the decision is about more than a technical deadline issue, but whether “tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic.”
About one million more voters requested absentee ballots this election than in 2016, Justice Ruth Bader Ginsburg wrote in the dissent, and the surge resulted in a severe backlog of ballots requested but not promptly mailed to voters. Democrats say some Wisconsin voters won’t get their absentee ballots until after election day.
“Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own,” Ginsburg wrote. “Ensuring an opportunity for the people of Wisconsin to exercise their votes should be our paramount concern.”
The majority, in an unsigned decision, said that “rhetoric is entirely displaced” and called the dissent “quite wrong,” saying there was no evidence that voters in the COVID-19 era are in a substantially different position than voters in previous elections who requested their absentee ballots late in the process.
The case started last month when the Democratic National Committee and the Democratic Party of Wisconsin, along with voting rights groups and Wisconsin voters, filed a lawsuit to stop strict enforcement of the usual election day deadline to return absentee ballots during the COVID-19 pandemic.
Democrats also pointed out that an extraordinary number of requests for absentee ballots — along with mail service that is operating more slowly during the pandemic — is causing a substantial backlog in getting them to voters on time.
The Republican National Committee and the Republican-controlled Wisconsin State Legislature filed an emergency application asking the Supreme Court to clarify the lower court order that ballots must be postmarked or personally delivered to the polls by Tuesday to be counted.
The Republicans argued courts can’t change the rules so close to an election, and that requiring the state to permit unlimited absentee voting for almost a week after the election “presents significant dangers to election integrity, voter confidence and the orderly administration of an election that already has strained state resources due to the difficult circumstances associated with COVID-19,” the Republicans argued.
The Republicans also argued that the district court judge did not require any postmark or other evidence that late-arriving ballots were completed on or before election day, which “means that tens of thousands of Wisconsin residents will be permitted to vote after the election-day deadline.”
The Republicans did not challenge other changes made by the district court judge, including an extension of deadlines to remotely register to vote or to request an absentee ballot.
More than 1.1 million Wisconsin voters received absentee ballots, and more than 561,000 already have been returned, the Supreme Court was told.