SCOTUS Blocks Wisconsin Absentee Ballot Extension Amid COVID-19 Epidemic

The U.S. Supreme Court Supreme Court blocked a lower-court order that had extended the deadline for absentee ballots to be submitted in Wisconsin, as the state went ahead with its election on April 7 amid the coronavirus (COVID-19) epidemic. The Court was sharply divided in Republican National Committee v. Democratic National Committee, 589 U. S. ____ (2020), with the Court’s liberal block arguing that the Court’s decision forced voters to decide between “endangering their own and others’ safety,” or “ los[ing] their right to vote, through no fault of their own.”

Facts of the Case

Wisconsin’s spring election was scheduled for Tuesday, April 7, 2020, with voters set to cast ballots for the presidential primaries, a seat on the Wisconsin Supreme Court, three seats on the Wisconsin Court of Appeals, over 100 other judgeships, over 500 school board seats, and several thousand other positions. Because gathering at the polling place posed serious health risks in light of the COVID-19 epidemic, an unprecedented number of Wisconsin voters—at the encouragement of public officials—turned to voting absentee. About one million more voters requested absentee ballots than in 2016, which heavily burdened election officials and resulted in a severe backlog of ballots requested but not promptly mailed to voters.

Plaintiffs—comprising individual Wisconsin voters, community organizations, and the state and national Democratic parties—filed three lawsuits against members of the Wisconsin Elections Commission in the United States District Court for the Western District of Wisconsin. They all sought several forms of relief, all aimed at easing the effects of the COVID–19 pandemic on the election. The district court concluded that the existing deadlines for absentee voting would unconstitutionally burden Wisconsin citizens’ right to vote. To alleviate that burden, the court entered a two-fold remedy. First, the District Court extended the deadline for voters to request absentee ballots from April 2 to April 3. Second, the District Court extended the deadline for election officials to receive completed absentee ballots. Previously, Wisconsin law required that absentee ballots be received by 8 p.m. on election day, April 7; under the preliminary injunction, the ballots would be accepted until 4 p.m. on April 13, regardless of the postmark date. The District Court also enjoined members of the Elections Com- mission and election inspectors from releasing any report of polling results before the new absentee-voting deadline, April 13.

The Republican National Committee challenged the extension of the deadline for returning absentee ballots. On April 3, the Seventh Circuit declined to modify the absentee-ballot deadline. The question before the Supreme Court was whether Wisconsin’s absentee ballots had to be mailed and post-marked by election day, Tuesday, April 7, as state law would necessarily require, or instead may be mailed and postmarked after election day, so long as they are received by Monday, April 13.

Supreme Court’s Decision

The Court’s majority sided with the Republican National Committee and the Republican Party of Wisconsin and granted the application of stay.In reaching its decision, the Court emphasized that it was not weighing in on the “wisdom” of Wisconsin’s decision to go ahead with its election “or whether other reforms or modifications in election procedures in light of COVID-19 are appropriate.” According to the Court, the “question before the Court is a narrow, technical question about the absentee ballot process.”

The majority also noted that the plaintiffs had not asked the district court to extend the date to cast absentee ballots. “[E]xtending the date by which ballots may be cast by voters—not just received by the municipal clerks but cast by voters—for an additional six days after the scheduled election day fundamentally alters the nature of the election,” the Court wrote in a per curium opinion.

“By changing the election rules so close to the election date and by affording relief that the plaintiffs themselves did not ask for in their preliminary injunction motions, the District Court contravened this Court’s precedents and erred by ordering such relief,” the Court added. “This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”

The Court also expressed concerns that the district court was forced to issue a second order that required election officials to refrain from disclosing election results until all the absentee ballots were received on April 13. “[I]f any information were released during that time,” the Court wrote, “that would gravely affect the integrity of the election process.”

Dissent

Justice Ruth Bader Ginsburg filed a dissenting opinion, in which Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan joined.

Justice Ginsburg argued that the majority minimized the question before the justices, maintaining that it was really “whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic.” While Justice Ginsburg emphasized that she did “not doubt the good faith of” her colleagues in the majority, she raised concern that its decision “will result in massive disenfranchisement.”

“A voter cannot deliver for postmarking a ballot she has not received. Yet tens of thousands of voters who timely requested ballots are unlikely to receive them by April 7, the Court’s postmark deadline,” Justice Ginsburg wrote. “Rising concern about the COVID–19 pandemic has caused a late surge in absentee-ballot requests. The Court’s suggestion that the current situation is not ‘substantially different’ from ‘an ordinary election’ boggles the mind.”