The Supreme Court on Monday rejected requests from two groups of Wisconsin voters and the Democratic National Committee to reinstate modifications to election rules that a federal judge had ordered for the November election because of the coronavirus pandemic. The 5-3 ruling means that the the election will go forward without the accommodations, which included extending the deadline for the receipt of absentee ballots and making it easier for local election officials to work in areas where they do not live. Justice Elena Kagan dissented, writing an opinion that was joined by Justices Stephen Breyer and Sonia Sotomayor. Chief Justice John Roberts and Justices Neil Gorsuch and Brett Kavanaugh each filed separate opinions agreeing with the court’s decision to deny relief.
Monday’s ruling – issued just a few minutes before the Senate’s confirmation of Judge Amy Coney Barrett — was the latest chapter in the clash over election rules in Wisconsin, which is both a battleground state in the presidential election and experiencing a record increase in deaths from COVID-19. In April, on the eve of the state’s presidential primaries and other spring elections, a divided Supreme Court granted a request by the Republican National Committee and Wisconsin Republicans to block a lower-court order that had extended the deadline for absentee voters to mail in their ballots. In the wake of that decision, pictures and video footage of long lines outside polling places were broadcast around the country.
The fight over voting in Wisconsin continued after the April election, with Wisconsin voters and Wisconsin Democrats seeking accommodations for the November elections because of the pandemic. U.S. District Judge William Conley issued an order on Sept. 21 that directed election officials to count all absentee ballots that are postmarked by Election Day and received by Nov. 9 – a six-day extension of the deadline in state law, which requires absentee voters to return their ballots by the day of the election in order to be counted. Conley also ordered the state to waive a requirement that poll workers live and work in the same county, and he required the state to offer electronic delivery of ballots for voters when those ballots do not arrive through the mail on time.
Wisconsin election officials went to the U.S. Court of Appeals for the 7th Circuit, and on Oct. 8, a panel of that court put Conley’s order on hold. Judge Ilana Rovner dissented from that order, writing that as a result of the stay “many thousands of Wisconsin citizens will lose their right to vote despite doing everything they reasonably can do to exercise it.”
This time, it was Democrats’ turn to come to the Supreme Court seeking relief. In three different filings earlier this month, the challengers asked the justices to restore the modifications that Conley had ordered. Wisconsin Democrats and the DNC stressed that the state is currently a “red zone” for COVID-19, with “high levels of community transmission” in half of its counties. Conley’s order extending the deadline for absentee ballots by six days for ballots postmarked by Election Day, they contended, rested on guidance from the justices in April, when the court modified Conley’s earlier order to require the state to count only absentee ballots that were received or postmarked by Election Day.
The Republican-controlled Wisconsin legislature opposed Conley’s extension, emphasizing that the Supreme Court “has made clear time and again that COVID-19 provides federal courts with no authority to re-write state election laws.” And as a practical matter, the legislature continued, even if some voters’ absentee ballots are delayed, those voters have other ways to cast a ballot – indeed, it contended, “more avenues than are available in more other States.” Finally, the legislature concluded, granting the challengers the relief that they seek “would throw the already ongoing November 2020 Election into chaos around the country.”
The court denied the challengers’ requests on Monday, nine days after the last brief had been filed. Kagan’s dissent began by observing that “Wisconsin is one of the hottest of all COVID hotspots in the Nation.” Kagan pushed back against the idea that extending the ballot-receipt deadline would cause confusion or undermine the integrity of the election process. “[W]hat will undermine the ‘integrity’” of the democratic process, Kagan posited, “is not the counting but instead the discarding of timely cast ballots that, because of pandemic conditions, arrive a bit after Election Day.”
Kagan acknowledged the court’s emphasis on deferring to a “legislature’s decision about how best to manage the COVID pandemic.” But in this case, she continued, the Wisconsin legislature hasn’t even met since April. And deference is less appropriate in the election-law arena, she suggested, where “politicians’ incentives often conflict with voters’ interests.”
Kagan closed with sharp words for her colleagues and the result, writing that during the pandemic Wisconsin’s “ballot-receipt deadline and the Court’s decision upholding it disenfranchise citizens by depriving them of their constitutionally guaranteed right to vote.” Quoting from the late Justice Ruth Bader Ginsburg’s dissenting opinion in April, Kagan observed that voters who receive their mail-in ballots too late to return them by Election Day must decide between “braving the polls” and “losing their right to vote.” “The voters of Wisconsin,” Kagan concluded, “deserve a better choice.”
In a brief opinion agreeing with the decision to deny relief, Roberts explained that he agreed with the 7th Circuit’s decision to put Conley’s ruling on hold because the case involved a federal district court that had “intervened in the thick of election season to enjoin enforcement of a State’s laws.” Roberts said that this case was different from the Pennsylvania case — in which the justices last week let stand a lower-court order requiring election officials to count absentee ballots received within three days after Election Day — because those requests involved the power of state courts to apply their own constitution to election regulations. This case, by contrast, involves a federal “intrusion on state lawmaking process.”
Gorsuch’s opinion, which Kavanaugh joined, noted that Wisconsin has “made considerable efforts to accommodate early voting and respond to COVID.” The district court’s complaint, Gorsuch observed, was that the state hadn’t done enough to respond to COVID. But the Constitution gives state legislatures, not courts, the power to set election rules, Gorsuch stressed. And although “[n]o one doubts that conducting a national election amid a pandemic poses serious challenges,” “none of that means individual judges may improvise with their own election rules in place of those the people’s representatives have adopted.”
In his own opinion, Kavanaugh found three main flaws in Conley’s order. It changed the rules too close to the election, he contended, “misapprehended the limited role of the federal courts in COVID-19 cases,” and “did not sufficiently appreciate the significance of election deadlines.” Elaborating on his third point, Kavanaugh agreed with Kagan that COVID-19 “is a serious problem.” But, he added, “you need deadlines to hold elections.” And “the relevant question is not whether any voter will ever miss the deadlines,” he continued, but instead whether the deadline is reasonable – which, in his view, it is. The best course of action, Kavanaugh concluded, is for a voter who wants to vote absentee to request a ballot and mail it in ahead of time. But if that doesn’t work out, he noted, there is always the option of voting in person.
The court issued the Wisconsin orders just moments before the Senate began its vote to confirm Barrett to the seat formerly held by Ginsburg. Barrett is expected to take the judicial oath, which will allow her to begin work, on Tuesday. Challenges by Republicans in Pennsylvania and North Carolina to extended deadlines for mail-in ballots are likely to still be pending when she arrives at the court.
This article is also published on SCOTUSblog.