Court Battles

Supreme Court rejects Democrats’ bid to reinstate mail-in ballot extension in Wisconsin

Greg Nash

The Supreme Court on Monday voted 5-3 along ideological lines, with a conservative majority, to deny a bid by Democrats to reinstate a six-day extension for the receipt of mail-in ballots in Wisconsin, a key battleground state in the presidential race.

The ruling may have a disproportionate impact on supporters of Democratic nominee Joe Biden, who are more likely to vote by mail than backers of President Trump, who won the state in 2016 by fewer than 23,000 votes.

Justice Elena Kagan, who was joined by the court’s two other liberals, wrote a 12-page dissent, arguing that the ruling threatens to disenfranchise Wisconsin voters.

“The facts, as found by the district court, are clear: Tens of thousands of Wisconsinites, through no fault of their own, may receive their mail ballots too late to return them by Election Day. 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,” Kagan wrote, citing an earlier dissent by the late Justice Ruth Bader Ginsburg.

A federal district judge ruled in September that Wisconsin mail ballots postmarked by Election Day, Nov. 3, and received up to six days later would be counted, saying that the coronavirus pandemic posed a threat to in-person voting in the state. 

But a divided three-judge panel of the U.S. Court of Appeals for the 7th Circuit earlier this month reversed the lower court and reinstated the Nov. 3 due date, prompting a petition by the Democratic National Committee asking the Supreme Court to restore the judge’s ruling.

Three of the court’s more conservative members — Chief Justice John Roberts, and Justices Neil Gorsuch and Bretty Kavanaugh — wrote separate opinions concurring with the court’s decision to deny the Democrats’ request.

Gorsuch, whose concurrence was joined by Kavanaugh, said the district court lacked the authority to “substitute its own election deadline for the state’s.”

“The judge in this case tacked 6 days onto the State’s election deadline, but what about 3 or 7 or 10, and what’s to stop different judges choosing (as they surely would) different deadlines in different jurisdictions?” he wrote. “A widely shared state policy seeking to make election day real would give way to a Babel of decrees.”

Roberts wrote separately to express his view that the federal district court’s intervention was improper.

The Wisconsin case is one of several election-related disputes to reach the high court during what is shaping up to be the most intensely litigated election cycle in U.S. history.

Democrats and their allies have pushed for an easing of balloting restrictions to accommodate voters during the pandemic, while conservatives have countered, though largely without evidence, that looser restrictions will lead to widespread voter fraud.

—Updated at 9:08 p.m.

Tags 2020 2020 election absentee ballots absentee voting Donald Trump Elena Kagan Joe Biden mail-in ballots mail-in voting Neil Gorsuch Ruth Bader Ginsburg Vote by Mail voting by mail Wisconsin

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