Two different groups of Wisconsin voters came to the Supreme Court on Tuesday, asking the justices to reinstate three modifications to election rules that a federal district judge had ordered for the upcoming election because of the coronavirus pandemic. The groups want the justices to block a ruling by the U.S. Court of Appeals for the 7th Circuit that paused those modifications.
U.S. District Judge William Conley issued an order in four consolidated cases on Sept. 21 that, among other things, extended the deadline for absentee ballots, ordering election officials to count them as long as they are postmarked by Election Day and received within six days. Conley also ordered the state to waive a law requiring local election officials to live in the county where they work and directed the state’s election commission to offer electronic delivery of mail-in ballots for voters who do not receive their ballots in the mail in time.
The 7th Circuit put Conley’s order on hold on Oct. 8. Judge Ilana Rovner dissented, arguing that as a result of the stay “many thousands of Wisconsin citizens will lose their right to vote despite doing everything they reasonably can to exercise it.”
In a filing on Tuesday afternoon, one group of voters asked the justices to restore the two parts of Conley’s Sept. 21 order that extended the absentee-ballot deadline by six days and allowed out-of-county poll workers. Jill Swenson and the other plaintiffs in that case argued that there was no chance that voters would be confused by reviving the accommodations that the district court had required – a rationale underlying the doctrine, known as the Purcell principle, that courts should generally refrain from changing the rules of an election at the last minute – because the accommodations do not affect voters at all. Moreover, they added, the Supreme Court has not created a rule of “absolute deference to the Legislature on matters of election administration.” Rather, they contended, the important question is whether the legislature has considered how to respond to the COVID-19 pandemic. The voters argued that the Wisconsin legislature has not.
In a separate filing, a different group of voters asked the justices to reinstate the electronic-delivery requirement. Sylvia Gear and the other plaintiffs in that case told the justices that the “history of the litigation over this particular Wisconsin law puts this case on very different footing from every other election law case that has reached the Court this year.” The Purcell principle does not apply, they emphasized, because the district court couldn’t have issued its order in May, as the 7th Circuit suggested: Until the end of June, all Wisconsin voters were eligible to receive ballots by email. And the availability of electronic delivery until recently means that voters will not be confused by Conley’s order, as some voters “have already come to expect and rely upon email delivery of mail-in ballots over the course of many years.”
Both stay requests go to Justice Brett Kavanaugh, who handles emergency appeals from the 7th Circuit. Kavanaugh can act on the requests alone or, as is more common, refer them to the full court.
Update: In a third filing on Wednesday, the Democratic National Committee and Wisconsin Democrats also asked the court to block the 7th Circuit’s order. They emphasized that Wisconsin is currently a “red zone” for COVID-19, with “high levels of community transmission” in half of the state’s counties. Conley’s decision to extend the deadline for absentee ballots by six days for ballots postmarked by Election Day, they argued, was based on guidance from the Supreme Court in April, when the justices modified the six-day extension that Conley had ordered for the state’s April election to require the state to count only absentee ballots that were received or postmarked by Election Day.
Kavanaugh called for a response to all three filings by noon on Friday, Oct. 16.
This post is also published on SCOTUSblog.