WASHINGTON (CN) — In a 5-3 ruling, the U.S. Supreme Court rejected a bid to extend the deadline for when mail-in ballots could be received in Wisconsin.
Litigants ranging from the Democratic National Committee and Democratic Party of Wisconsin to local advocacy groups such as Black Lives Organizing for Communities have pushed hard in court for months to ease election rules ever since Wisconsin’s controversial April primary, when voters donned masks and gloves to brave the polls in person during the early weeks of the Covid-19 pandemic. In cities like Milwaukee, some voters waited hours in long lines to cast their ballot while risking exposure to the novel coronavirus.
Conservatives who control the Wisconsin Legislature, the Republican National Committee and Republican Party of Wisconsin have resisted any changes to state election laws, mostly in the name of protecting the integrity of the ballot box.
Eventually, four federal lawsuits — some brought by voters claiming they were disenfranchised during April’s chaotic primary — were consolidated in federal court under U.S. District Judge William Conley, who tried to extend absentee voting for the April primary but was blocked by the U.S. Supreme Court.
Conley, a Barack Obama appointee, issued a decision last month that eased certain election rules and pushed back some voter registration and absentee ballot deadlines, positing that the changes were necessary to avoid overwhelming election clerks with an unprecedented number of absentee ballots and potentially disenfranchising tens of thousands of voters.
Among the changes Conley’s ruling made was to extend the receipt deadline for absentee ballots, which would have allowed clerks to count the ballots until Nov. 9 as long as they were postmarked by Election Day.
The Seventh Circuit disagreed earlier this month and rolled back the district court’s changes, in part because Conley had waited too long to alter election law due to the virus and because making those adjustments in any case is the task of a state’s elected officials, not the courts.
The appeals court mentioned at that juncture that the U.S. Supreme Court only permits last-minute changes to electoral rules in very limited circumstances. The high court doubled down on that position Monday night, ending the fight over the Badger State’s election procedures barely a week ahead of Nov. 3.
Justices Brett Kavanaugh and Neil Gorsuch and Chief Justice John Roberts spoke for the majority across three concurring opinions.
Gorsuch, a Donald Trump appointee, did not feel Covid-19 was a good enough excuse at this stage in the game to allow a federal judge to intervene in a case of a state’s election laws, even if the state is currently fighting back a virus surge among the nation’s worst.
“The district court’s only possible complaint is that the state hasn’t done enough. But how much is enough? If Wisconsin’s statutory absentee voting deadline can be discarded on the strength of the state’s status as a Covid ‘hotspot,’ what about the deadlines in 30 other states?” the justice asked, wondering where the limits of the court’s power to interject in state legislatures’ authority would ultimately be.
Though he understood that “democratic processes can prove frustrating,” Gorsuch put forth that the framers of the Constitution intended for such changes to the status quo not to be made in haste without full collaboration, adding that this arrangment can't be undone “just because we might be frustrated.”
Kavanaugh reemphasized that big changes to voting rules cannot be made so close to the election since “even seemingly innocuous late-in-the-day judicial alterations to state election laws can interfere with administration of an election and cause unanticipated consequences.”
The justice, also a Trump appointee, acknowledged that the coronavirus pandemic has killed more than 200,000 Americans and continues to pose a serious threat nationwide but said that "federal judges do not possess special expertise of competence about how best to balance the costs and benefits of potential policy responses to the pandemic, including with respect to elections.”
Kavanaugh also felt the district court did not respect the deadlines state legislatures set for elections and why they do, including because they “want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.”
Over 1.3 million people have already voted absentee in Wisconsin, where there have been 201,049 confirmed coronavirus cases and 1,788 deaths as of Monday.
Justice Elena Kagan brought the sole dissenting opinion to Monday’s ruling.
The Barack Obama appointee began by pointing out that changes by judges to election rules ahead of Wisconsin’s April primary saved some 80,000 ballots from going uncounted and the pandemic is by many measures much worse in the Badger State now than it was then, averaging more than 20 times more cases per day than during the spring election.
That being the case, for Kagan it made sense to allow a six-day grace period for clerks to count untold thousands of mail-in ballots which will undoubtedly arrive at the last minute, since voters have until Oct. 29 to request one under Wisconsin law and around 1.7 million people already have.
“Because the court refuses to reinstate the district court’s injunction, Wisconsin will throw out thousands of timely requested and timely cast mail ballots,” Kagan said.
The result of the high court’s decision, Kagan found, was that potentially tens of thousands of Wisconsinites are going to be forced on Election Day to choose between risking infection by a potentially deadly virus with no known cure and losing their constitutional right to vote.
“The voters of Wisconsin deserve a better choice,” the justice said.
Kagan was joined in her dissent by Justices Stephen Breyer and Sonia Sotomayor, appointees of Bill Clinton and Obama, respectively.
Courthouse News Reporter Jack Rodgers contributed to this report.Follow @@cnsjkelly
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