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SCOTUS Overturns Two Lower Courts in Not Allowing Certain WI Absentee Ballots to Be Counted

Voting ballot: Absentee voting by mail with candidates and measures on paper and pen with glasses
By Joseph Fawbush, Esq. | Last updated on

Tens of thousands of Wisconsin voters have an important question to ask themselves today: Go to one of the few remaining open polling places in the state, putting their health at risk, or be unable to vote in an election in which the U.S. President, a state supreme court justice, and thousands of other elected positions at the federal, state, and local levels are at stake.

What they cannot do, after a Supreme Court decision yesterday, is mail in their absentee ballots received after today.

Absentee Voting Up

Unsurprisingly, and at the request of state officials, millions of Wisconsinites have requested absentee ballots. This has burdened the Wisconsin Elections Commission, meaning that tens of thousands of Wisconsin residents have not received their ballots, despite requesting them on time. Under Wisconsin law, absentee ballots must be postmarked by today, April 7, to be counted.

A district court, however, extended the deadline so that any absentee ballots received by April 13 could be counted, regardless of the postmarked date. The Wisconsin Election Commission did not appeal. The Republican National Committee requested a stay of this order as an intervening party.

The 7th Circuit refused, but in a per curiam opinion the night before the election, a narrow majority of Supreme Court justices did grant the stay.

The Majority's Rationale

The majority had four reasons for granting the stay:

  • The plaintiffs only requested the extension at a hearing, not in written request for a preliminary injunction
  • Federal courts “should ordinarily not alter the election rules on the eve of an election"
  • The escalating COVID-19 pandemic is not putting absentee voters in a “substantially different position"
  • Extending the deadline would lead to gamesmanship of the election process

The majority admits that the plaintiffs had not forfeited the argument, writing that “[o]ur point is not that the argument is necessarily forfeited, but is that the plaintiffs themselves did not see the need to ask for such relief." Although they did, at the preliminary injunction hearing. The majority also wrote that while courts should not intervene in election law on the eve of an election, that doctrine does not apply to a Supreme Court review of a lower court's holding. The majority argued that the plaintiffs had not offered evidence that COVID-19 was affecting absentee ballots, failing to mention the fact finding of the district court. Finally, the majority reasoned that while the district court enjoined disclosure of any election results prior to all ballots being received, “[i]t is highly questionable, moreover, that this attempt to suppress disclosure of the election results for six days after election day would work." The majority did not offer supporting rationale or evidence.

The Dissenting Opinion

In the dissent, Justice Ginsberg countered the majority by writing that:

  • The plaintiffs did request an extension as soon as it became clear that one was needed. They did so at the hearing.
  • The Supreme Court's decision is throwing the election laws in the state into even more doubt. If Purcell precedent applies, as the majority held it does, it also applies here.
  • “The Court's suggestion that the current situation is not substantially different from an ordinary election boggles the mind," Justice Ginsberg wrote. She also reminded the majority that a voter cannot deliver for postmarking a ballot they have not yet received.
  • The majority's concern about gamesmanship, which is speculative, “pale[s] in comparison to the risk that tens of thousands of voters will be disenfranchised."

Justice Ginsburg felt the need to note that she did not doubt the “good faith" of her colleagues in the majority. However, many have already questioned the majority's rationale, viewing it as a partisan decision that helps the Republican National Committee suppress votes.

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