Wisconsin foreshadows more COVID-19 election law tests

Majority opinion might have added a ballot postmark requirement that could apply to other states.

Voters insert their ballots into a machine. (Bill Clark/CQ Roll Call file photo)
Voters insert their ballots into a machine. (Bill Clark/CQ Roll Call file photo)
Posted April 7, 2020 at 10:58am

A Supreme Court decision about absentee ballots in Wisconsin’s elections has voting rights advocates warning other states to prepare for a surge of absentee votes in November — and one prominent Democratic lawyer sees a silver lining that could widen the opportunity for voters in upcoming elections.

In a sharply divided 5-4 decision late Monday, the Supreme Court halted a lower court’s order to give Wisconsin voters an extra six days to submit absentee ballots after Tuesday's election because of the COVID-19 pandemic.

A key part of the case turns on the large increase in requests for absentee ballots in Wisconsin, in part because of public health concerns about going to polling places in person and being exposed to the highly contagious coronavirus.

That ongoing health emergency created a severe backlog of ballots that were requested but not promptly mailed, and Democrats say some Wisconsin voters won’t get their absentee ballots until after election day.

The legal drama played out on the day before the election, with the Supreme Court ruling that absentee ballots must be postmarked by election day to be counted.

Loading the player...

The ruling “sent a chilling message” that states “need to get ready to deal with a surge of mailed ballots” and other preparations to assure voters can participate in the election, said Paul Smith, vice president of Campaign Legal Center and an appellate litigator.

“Every state needs to have a way for citizens to vote by mail if they choose to do so, while also allowing in-person voting spread over a number of days,” Smith said. “All of these arrangements need to be clearly explained to voters well in advance of the election.”

Edward Foley, a constitutional law professor and director of Ohio State University’s election law program, said the decision should prepare everyone for the risk of a disputed general election in November.

What if the presidency turns on the kind of dispute like yesterday's in Wisconsin, "over proper remedy for late absentee ballots?” Foley tweeted Tuesday.

History shows that a major fight over an election’s outcome is more likely to come in the form of challenges to absentee ballots, Foley wrote Tuesday in an op-ed in Politico.

But Democratic-aligned lawyers who criticized the result of the Supreme Court ruling for Wisconsin’s election also said the majority opinion might have added a requirement to the state voting law that could apply to other states.

A lower court judge had changed the date of when absentee ballots must be received by Wisconsin election officials from April 7 to April 13, but did not state anything about when the ballot must be postmarked. The state law does not have a requirement for when a ballot must be postmarked, only when it must be received.

The Supreme Court majority opinion — focused on concerns that voters would be able to fill out and mail absentee ballots after election day — ordered that Wisconsin’s absentee ballots must be postmarked or hand-delivered by election day to be counted.

That possibly unintentional high court endorsement of a “postmarked by election day” standard, rather than a “received by election day” standard that many states have, is the key holding beyond the Wisconsin election, said Mark Elias, an election lawyer for Democrats nationwide.

The postmark standard could give extra time to voters in the waning days ahead of the election in states with laws that require the absentee ballot to be received by election day.

“This will enfranchise thousands of voters in November,” Elias tweeted.

Other election law watchers saw trouble in the court rulings over Wisconsin’s primary election that were divided along ideological lines, first at the state’s high court and then at the Supreme Court.

It is “a very bad sign for November that the Court could not come together and find some form of compromise here in the midst of a global pandemic unlike anything we have seen in our lifetimes,” Rick Hasen, a professor at the University of California-Irvine School of Law, wrote on his election law blog.

Election-related litigation set a record in 2018, and 2020 was already set to surpass it, Hasen wrote.

“But with election changes proliferating and a fight over expanded absentee balloting necessary to combat the COVID crisis, the amount of litigation is going to skyrocket,” Hasen wrote. “And it does not look like the courts are going to be able to do any better than the politicians in finding common ground on election principles.”