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    Supreme Court Upholds Wisconsin Law Requiring Receipt of Mail-In Ballots By Election Day

    Supreme Court Upholds Wisconsin Law Requiring Receipt of Mail-In Ballots By Election Day

    Refuses to vacate 7th Circuit stay of District Court injunction extending the deadline, with the three liberal Justices dissenting.
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    The United States Supreme Court has upheld Wisconsin law requiring that absentee and mail-in ballots be received by Election Day. The Court rejected lower court attempts to extend the deadline for receive. The decision came in an Order denying a motion to vacate a prior 7th Circuit stay of lower court injunction.

    The Order with all dissenting and concurring opinions is here.

    Chief Justice Roberts, trying to distinguish his failure in the Pennsylvania case, wrote in concurrence:

    In this case, as in several this Court has recently addressed, a District Court intervened in the thick of election season to enjoin enforcement of a State’s laws. Because I believe this intervention was improper, I agree with the decision of the Seventh Circuit to stay the injunction pending appeal. I write separately to note that this case presents different issues than the applications this Court recently denied in Scarnati v. Boockvar, ante, at ___, and Republican Party of Pennsylvania v. Boockvar, ante, at ___. While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes. 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.

    Justice Gorsuch, joined by Kavanaugh, mocked the argument that the 6-day extension was necessary on the facts:

    Why did the district court seek to scuttle such a long-set-tled tradition in this area? COVID. Because of the current pandemic, the court suggested, it was free to substitute its own election deadline for the State’s. Never mind that, in response to the pandemic, the Wisconsin Elections Commis-sion decided to mail registered voters an absentee ballot ap-plication and return envelope over the summer, so no one had to ask for one. Never mind that voters have also been free to seek and return absentee ballots since September. Never mind that voters may return their ballots not only by mail but also by bringing them to a county clerk’s office, or various “no touch” drop boxes staged locally, or certain poll-ing places on election day. Never mind that those unable to vote on election day have still other options in Wisconsin, like voting in-person during a 2-week voting period before election day. And never mind that the court itself found the pandemic posed an insufficient threat to the health and safety of voters to justify revamping the State’s in-person election procedures.

    So it’s indisputable that Wisconsin has made considerable efforts to accommodate early voting and respond to COVID. The district court’s only possible complaint is that the State hasn’t done enough. But how much is enough?

    Gorsuch also rejected the extension on constitutional grounds:

    The Constitution dictates a different approach to these how-much-is-enough questions. The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules. Art. I, §4, cl. 1. And the Constitution provides a second layer of protection too. If state rules need revision, Congress is free to alter them. Ibid. (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . ”). Nothing in our founding document contemplates the kind of judicial intervention that took place here, nor is there precedent for it in 230 years of this Court’s decisions.

    Kavanaugh wrote his own concurring opinion:

    In sum, the District Court’s injunction was unwarranted for three alternative and independent reasons: The District Court changed the state election laws too close to the elec-tion. It misapprehended the limited role of federal courts in COVID–19 cases. And it did not sufficiently appreciate the significance of election deadlines.

    Kagan wrote the dissent, joined by Breyer and Sotomayor:

    I respectfully dissent because the Court’s decision will disenfranchise large numbers of responsible voters in the midst of hazardous pandemic conditions.

    * * *

    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.” Repub-lican National Committee, 589 U. S., at ___ (Ginsburg, J., dissenting) (slip op., at 6). The voters of Wisconsin deserve a better choice.


    From a reader: Now that we have 9 justices (thank God) can the 4-4 Robert’s “failure” be reviewed by the SC?

    Answer: Yes, they filed on Friday, asking for an expedited ruling on the merits (the prior ruling was on a request for an emergency injunction). I wouldn’t get your hopes up, however, given the timing.


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    If you allow at least a month to apply, receive and mail an absentee vote, why would the state need to allow extra time after the date of the election?

    The US received approx 390,000,000 packages per day in 2019. How difficult would it be for the USPS to handle the additional absentee vote volume?

      bhwms in reply to Davod1. | October 27, 2020 at 12:34 pm

      In the best of circumstances, IMHO, the USPS is incompetent. I’ve had packages returned to Amazon because they couldn’t find my address with one attempt, when I get mail every day. I’ve had first class mail take 9 days to get from one side of my small city to the other side – it should be delivered at most 2 business days later. I’ve had them excuse it by claiming that someone dumped periodicals on top of first class mail before it was sorted, only to have the same thing happen the next month. I had a 2 day Priority package sit at the local distribution center for 2 weeks. How is all that possible?

      I don’t think the problems are with the carriers. I think the problems are with upper management with their fiscal mis-management, and with local supervision/union shop stewards who don’t train for quality, but instead look for ways to antagonize each other. Add that to a ton of stupid and outdated rules.

      Having said that, with all the problems I know they have, it is amazing they are able to deliver as much mail as they do at all.

        Re-read the Gorsuch comment. You don’t have to trust the post office with your ballot. They’re due by election day, period, according to Wisconsin state law.

        (6) The ballot shall be returned so it is delivered to the polling place no later than 8 p.m. on election day. Except in municipalities where absentee ballots are canvassed under s. 7.52, if the municipal clerk receives an absentee ballot on election day, the clerk shall secure the ballot and cause the ballot to be delivered to the polling place serving the elector’s residence before 8 p.m. Any ballot not mailed or delivered as provided in this subsection may not be counted.

          bhwms in reply to georgfelis. | October 27, 2020 at 11:29 pm

          I agree. It’s up to you. If I was going to mail my ballot here, I would allow 10 days.

          But voting in person is much more secure and guaranteed, even if I have to wait in line for hours, I will do it. Last time I had to wait in a huge line it was November 2004 for Reagan – over 5 hours.

    Justice Kagan self-admittedly sees bogeymen everywhere.
    Good to know.

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