Ruby Lenora casts her in-person vote on her 73rd birthday at a polling site at the Milwaukee Public Library?s Washington Park location in Milwaukee, on the first day of in-person voting in Wisconsin, U.S., October 20, 2020.
Bing Guan | Reuters
The Supreme Court on Monday evening voted 5-3 against Democrats who were pushing to extend the deadline for counting absentee ballots in Wisconsin by six days in order to provide the state more time to deal with the surge in mail-in voting caused by the Covid-19 pandemic.
The decision, announced in an order, came eight days before Election Day. Wisconsin is a key battleground state in the battle between President Donald Trump and Democratic nominee Joe Biden. As a result of the Supreme Court’s move, ballots will have to be delivered by 8 p.m. on Nov. 3 to be counted.
The court’s eight justices divided along partisan lines, with the court’s three Democratic-appointees in dissent. The order, which came amid a flurry of election-related disputes that are making their way to the justices, was released as the Senate voted 52-48 to confirm Judge Amy Coney Barrett to the Supreme Court. Barrett’s confirmation gives conservatives a 6-3 majority.
The top court’s order followed a ruling from District Court Judge William Conley last month extending the state’s absentee ballot counting deadline in response to a suit from the Democratic National Committee and its allies. Conley cited the unusually high number of ballots cast by mail as well as delays with the United States Postal Service.
A similar 6-day extension that was in place for Wisconsin’s April elections resulted in 80,000 ballots being counted that otherwise would have been disqualified, or 5% of the total ballots, according to the Wisconsin Elections Commission.
Trump, who is trailing Biden by about five percentage points in state polls, won the state over Democrat Hillary Clinton by just 23,000 votes in 2016. Covid-19 cases are at a record nationwide, with Wisconsin among the worst-hit hot spots.
A panel of the 7th U.S. Circuit Court of Appeals blocked Conley’s ruling earlier in October. The Democrats appealed to the Supreme Court to reverse the appeals court ruling, but the justices declined to do so.
Justice Neil Gorsuch, writing for himself and Justice Brett Kavanaugh, wrote that he opposed the extension because the Constitution provides for elected officials, not judges, to set election rules. Gorsuch and Kavanaugh were both appointed by Trump.
“Legislators can be held accountable by the people for the rules they write or fail to write; typically, judges cannot,” Gorsuch wrote. “Legislatures make policy and bring to bear the collective wisdom of the whole people when they do, while courts dispense the judgment of only a single person or a handful.”
Chief Justice John Roberts, who sided with the court’s three liberals earlier this month to allow Pennsylvania to count ballots received after Election Day, wrote separately to distinguish the cases.
“Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin,” Roberts wrote.
Justice Elena Kagan wrote in a dissent joined by her fellow liberals Justices Stephen Breyer and Sonia Sotomayor that the majority’s decision “disenfranchise citizens by depriving them of their constitutionally guaranteed right to vote.”
“Because the Court refuses to reinstate the district court’s injunction, Wisconsin will throw out thousands of timely requested and timely cast mail ballots,” Kagan wrote.
Kagan said that the decision “does not stand alone.” In other recent cases, she wrote, the court had also made it more difficult for people to cast ballots safely.
“As the COVID pandemic rages, the Court has failed to adequately protect the Nation’s voters,” she wrote.
Kavanaugh, in his own concurrence, said that he acknowledged that Covid-19 was a serious problem, but “you need deadlines to hold elections — there is just no wishing away or getting around that fundamental point. And Wisconsin’s deadline is the same as that in 30 other States and is a reasonable deadline given all the circumstances.”
“Moving a deadline would not prevent ballots from arriving after the newly minted deadline any more than moving first base would mean no more close plays,” he added.