Supreme Court Rejects Democrats on Wisconsin Ballot Deadline

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A divided U.S. Supreme Court rejected Democratic calls to reinstate a six-day extension for the receipt of mail ballots in Wisconsin, a state that is experiencing a surge of Covid-19 cases and could be pivotal in the presidential election.

The 5-3 rebuff means ballots must be received by Election Day to count in the state. Democrats were seeking to revive an extension that had been ordered by a federal trial judge and then blocked by an appeals court. The order came just before the Senate voted to confirm Amy Coney Barrett to fill the high court’s vacancy.

The court as a whole gave no explanation, but Justices Neil Gorsuch and Brett Kavanaugh in concurring opinions said the trial judge should have respected the rules set by Wisconsin’s elected officials. And in what could become a key footnote, Kavanaugh endorsed reasoning used by three conservative justices in the 2000 Bush v. Gore case, when the Supreme Court sealed the election for Republican George W. Bush.

Kavanaugh said the Supreme Court should intervene even when a state court is interpreting its own laws in a presidential election dispute, as happened in Bush v. Gore.

“The text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws,” Kavanaugh wrote in an opinion only for himself.

The court’s three Democratic appointees dissented. Writing for the group, Justice Elena Kagan said Wisconsin voters “deserve a better choice.”

“Tens of thousands of Wisconsinites, through no fault of their own, may receive their mail ballots too late to return them by Election Day,” Kagan wrote. “Without the district court’s order, they must opt between braving the polls, with all the risk that entails, and losing their right to vote.”

Polls show Democrat Joe Biden with a small but consistent lead in Wisconsin over Republican President Donald Trump, who narrowly won the state in 2016.

Roberts Pivot

The rejection follows a 4-4 Supreme Court decision last week to allow three extra days for ballots to arrive in Pennsylvania. In that case, a state court had backed the extension, and Republicans failed to get the needed five votes to block it at the short-handed Supreme Court.

Chief Justice John Roberts, the lone justice who supported both decisions, said the difference was that the Pennsylvania case involved a state court applying its own constitution.

“Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin,” Roberts wrote.

Deference to state courts could become a key issue in any litigation that arises after the presidential election, though it’s not clear Roberts would have majority support for his position, given Kavanaugh’s opinion.

Democrats said the Wisconsin extension was identical to one that was in place when the state held its primary in April in the early days of the pandemic. Although Republicans persuaded the Supreme Court to reinstate a mailing deadline for the April vote, they didn’t ask the justices to block the extra time for ballots to arrive.

In its April decision, the Supreme Court described the ballot-receipt extension as being “designed to ensure that the voters of Wisconsin can cast their ballots and have their votes count.”

Overtaxed Officials

In ordering the extension for the Nov. 3 general election, U.S. District Judge William Conley said overburdened election officials were struggling to get ballots to voters with enough time for them to be returned by Election Day. In his Sept. 21 order, Conley pointed to government projections that as many as 2 million Wisconsin voters would cast absentee ballots, along with the deterioration of mail service and the escalating public health crisis.

“Confidence in Wisconsin’s electoral process will be shattered if tens of thousands of valid, timely cast absentee ballots are not counted because they arrived two or three days after the election due to mail delays and other factors beyond the voters’ control,” the Democratic National Committee argued in court papers.

The 7th U.S. Circuit Court of Appeals blocked the extension on a 2-1 vote, faulting Conley for acting only six weeks before Election Day and saying elected officials should be the ones to make any adjustments to voting rules.

The Republican-controlled Wisconsin legislature urged the Supreme Court to keep the Election Day deadline in force, saying any problems were the fault of voters who didn’t plan ahead.

“Such difficulties, resulting from voters’ own choices to not request and return their absentee ballots for many weeks, do not come close to overcoming the State’s sovereign authority as to how best to handle voting with Covid-19,” the legislature argued.

The DNC case is Democratic National Committee v. Wisconsin State Legislature, 20A66.

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