Republicans won the latest fight to reach the US Supreme Court over how Americans cast ballots during the pandemic, with the justices voting 5-3 to block an extended timeline for Wisconsin to accept absentee ballots in the November election.
Monday’s order means that absentee ballots must arrive at local election offices in Wisconsin by 8 p.m. local time on Nov. 3 in order to be counted.
The court’s order came down just as the Senate was preparing to vote on now-Justice Amy Coney Barrett’s nomination to fill the late justice Ruth Bader Ginsburg’s seat on the court. But Republicans in Wisconsin didn’t end up needing her vote to prevail — the court’s five conservative-leaning members stuck together, and the three remaining liberal-leaning justices dissented.
The separate opinions that Chief Justice John Roberts Jr. and Justices Neil Gorsuch and Brett Kavanaugh wrote explaining their votes also offered insight into how they’ll consider any future election-related fights that go up to the court — they each wrote in favor of robust deference to state legislatures when it comes to how to run an election, and a narrow role for courts to second guess those decisions. It’s a position that Republicans in Wisconsin and other states have argued for in legal fights to limit the expansion of mail-in voting during the pandemic.
Kavanaugh even explicitly invoked the specter of the Supreme Court deciding the winner of this year’s presidential race, citing the Bush v. Gore decision in December 2000 that stopped ballot recounts in Florida ordered by the state Supreme Court and effectively handed George W. Bush the win.
A federal district judge in Wisconsin had entered an injunction in September that extended the deadline for the state to accept absentee ballots from Nov. 3 to Nov. 9 as long as they were postmarked by Election Day, concluding that leaving the original deadline in place would unconstitutionally burden people’s right to vote. He cited the fact that many more voters were expected to avoid the polls and apply to vote-by-mail because of the pandemic, and the risk of overwhelming the US postal system and local election officials, leading to potentially thousands of ballots arriving too late to be counted.
In a 2-1 decision on Oct. 8, however, the US Court of Appeals for the 7th Circuit stopped that order from taking effect, leaving the Election Day deadline intact. The judges in the majority — which featured two of the court’s conservative-leaning members, Judge Frank Easterbrook and Judge Amy St. Eve, one of President Donald Trump’s nominees — wrote that the Wisconsin judge had tried to change the rules too close to the election and that it should be up to the state’s elected officials to decide how best to respond to the coronavirus pandemic.
Judge Ilana Rovner dissented, noting that an absentee ballot deadline extension in Wisconsin for the primary election earlier in the year had prevented an estimated 80,000 ballots from being rejected. She wrote that her colleagues in the majority had adopted “a hands-off approach to election governance that elevates legislative prerogative over a citizen’s fundamental right to vote.”
“Good luck and G-d bless, Wisconsin. You are going to need it,” Rovner wrote.
Democrats in Wisconsin petitioned the Supreme Court to step in and reinstate the Wisconsin judge’s injunction that extended the deadline until Nov. 9.
Roberts had joined with the court’s liberal-leaning justices in a 4-4 vote earlier this month that kept in place a later absentee ballot deadline for Pennsylvania, rejecting Republicans’ challenge to a decision by the state Supreme Court. Roberts wrote in a one-paragraph concurrence on Monday that the Pennsylvania and Wisconsin cases were different — the former involved a state court interpreting a state constitution, while the latter involved “federal intrusion on state lawmaking processes.”
Gorsuch wrote in a concurring opinion, which Kavanaugh joined, that “no one doubts” the challenges of holding an election during a pandemic, but that didn’t mean judges could “improvise” election rules and replace what state legislatures had adopted.
“The clamor for judges to sweep in and address emergent problems, and the temptation for individual judges to fill the void of perceived inaction, can be great,” Gorsuch wrote. “But what sometimes seems like a fault in the constitutional design was a feature to the framers, a means of ensuring that any changes to the status quo will not be made hastily, without careful deliberation, extensive consultation, and social consensus.”
Kavanaugh also wrote his own concurring opinion. He wrote that the Wisconsin judge had tried to change the rules too close to an election in violation of what’s known as the Purcell principle, and also echoed Gorsuch and Roberts’ in saying that the lower court judge had “misapprehended the limited role of the federal courts in COVID–19 cases.”
“Federal courts have no business disregarding those state interests simply because the federal courts believe that later deadlines would be better,” he wrote.
Although the Wisconsin case didn’t involve a state court decision, Kavanaugh cited the Bush v. Gore case from 2000 in a footnote to make clear that he believed state courts, as well as federal courts, should have a limited role in interfering with state election laws. He also wrote that states had an interest in avoiding “the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.”
In a dissenting opinion joined by Justices Stephen Breyer and Sonia Sotomayor, Justice Elena Kagan wrote that the majority’s decision “will disenfranchise large numbers of responsible voters in the midst of hazardous pandemic conditions.”
“On the scales of both constitutional justice and electoral accuracy, protecting the right to vote in a health crisis outweighs conforming to a deadline created in safer days,” Kagan wrote.
Kagan responded to Kavanaugh’s warnings that post-Election Day deadlines for absentee ballot could lead to “suspicions of impropriety,” writing in a footnote that “nothing could be more ‘suspicio[us]’ or ‘improp[er]’ than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process.”
The dissenting justices also accused Kavanaugh and Gorsuch of ignoring the Wisconsin judge’s findings based on the record about the risks that in-person voting posed to voters in the state. Kavanaugh wrote that he agreed COVID-19 was a “serious problem,” but disagreed with the Wisconsin judge and his colleagues’ “speculative predictions” about what would happen if the Election Day deadline remained.
“The facts, as found by the district court, are clear: Tens of thousands of Wisconsinites, through no fault of their own, may receive their mail ballots too late to return them by Election Day. Without the district court’s order, they must opt between ‘brav[ing] the polls,’ with all the risk that entails, and ‘los[ing] their right to vote,” Kagan wrote. “The voters of Wisconsin deserve a better choice.“