In an emergency filing arising from the COVID-19 crisis, the Republican National Committee and Wisconsin Republicans tonight asked the Supreme Court to block a lower-court order that extended the deadline for Wisconsin voters to submit absentee ballots in the state’s upcoming primary election until April 13 – six days after the election, which is scheduled for Tuesday, April 7. Instead, Wisconsin Republicans urged the Supreme Court to make clear that all “absentee ballots must be postmarked (or personally delivered to the polls) no later than April 7 in order to be counted.”
On Thursday, April 2, U.S. District Judge William Conley had entered his order extending the deadline for absentee ballots. In doing so, Conley noted that “the extent of the risk of holding the upcoming primary election had become increasingly clear,” prompting voters in Wisconsin “to flock to the absentee ballot option in record numbers.” But the increased demand had also created a “huge backlog” in the ability of election officials to process the requests, Conley explained, making it difficult – if not impossible – for most voters to receive an absentee ballot and return it by election day. On April 3, the U.S. Court of Appeals for the 7th Circuit rejected the Wisconsin Republicans’ request to put the district court’s order on hold.
Acknowledging the “challenges that the current pandemic creates for voters and election officials,” the Wisconsin Republicans argued in today’s filing that they were seeking “exceedingly modest” relief: They were asking the justices only “for a partial stay of the district court’s order making clear that the extension of the deadline for the receipt of ballots applies only to those that were postmarked (or otherwise delivered) by April 7.” Such relief, the Wisconsin Republicans stressed, would give the plaintiffs in the case – which include the Democratic National Committee and the Democratic Party of Wisconsin – what they had actually asked for, “respect this Court’s warnings about courts altering the rules on the eve of elections, and prevent the serious possibility of fraud and misconduct created by the district court’s order.”
The highest-profile race on Tuesday’s ballot is the Democratic presidential primary, but Wisconsin voters will also decide (among other things) the fate of a seat on the Wisconsin Supreme Court, in a race that pits a conservative sitting justice against a liberal challenger.
Wisconsin Republicans asked the justices to issue a stay of the lower court’s decision no later than Monday, April 6. The court seems likely to act on the request quickly: Justice Brett Kavanaugh, who handles emergency appeals from the 7th Circuit, instructed the plaintiffs to file their response no later than 2 p.m. on Sunday, April 5.