Supreme Court rules Wisconsin mail-in ballots must be received by Nov. 3

Patrick Marley, Milwaukee Journal Sentinel
·5 min read

MADISON - The Supreme Court upheld Wisconsin's voting laws Monday, rejecting an effort to require the counting of absentee ballots that are sent back to election officials on or just before Election Day.

The court's 5-3 ruling means that absentee ballots will be counted only if they are in the hands of municipal clerks by the time polls close on Nov. 3.

The justices determined the courts shouldn't be the ones to decide the election rules amid the coronavirus pandemic that is surging in Wisconsin and across the world.

"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," Associate Justice Neil Gorsuch wrote in a concurring opinion.

In dissent, Associate Justice Elena Kagan gave that notion short shrift, noting Wisconsin's Republican-run legislature hasn't met since April. Extending the deadline for absentee ballots should have been allowed, she wrote.

"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.

After the decision came out, election officials emphasized a message they have been hammering on for months — voters should return their absentee ballots as soon as they can.

"If you’re planning to mail your ballot back, you should mail it back as soon as possible," said a statement from Meagan Wolfe, the director of the state Elections Commission.

Both sides were awaiting the decision anxiously because Wisconsin is a battleground in the presidential campaign. President Donald Trump won the state narrowly in 2016 but has consistently trailed Democratic nominee Joe Biden in polls this fall.

Democrats, their allies and nonpartisan groups argued the state law requiring absentee ballots to be returned by Election Day should be loosened because of the pandemic and a slowing of mail. They wanted ballots that are postmarked on or before Election Day to be counted.

Republicans fought the rules, arguing the courts shouldn't change election rules even in the face of a pandemic that is keeping many people in their homes.

U.S. District Judge William Conley in Madison agreed last month with those who sued, but a panel of the U.S. Court of Appeals for the 7th Circuit in Chicago reversed Conley's decision in a 2-1 ruling this month.

The high court's decision upholding the appeals ruling came less than an hour before the U.S. Senate confirmed Trump nominee Amy Coney Barrett to the Supreme Court. She replaces Associate Justice Ruth Bader Ginsburg, who died last month.

The decision is the end of the road for the case and means voters will have to adhere to long-standing rules in an election that is expected to have a record level of mail voting.

The district court ruling also would have given people more time to use an online portal to register to vote and allowed poll workers to serve in any community, not just ones in the counties where they reside. But the Supreme Court, like the appeals panel, rejected those changes to election rules as well.

The decision was reached by the court's conservative majority, Chief Justice John Roberts and Associate Justices Gorsuch, Clarence Thomas, Samuel Alito and Brett Kavanaugh. In dissent were its liberals, Kagan with Associate Justices Stephen Breyer and Sonia Sotomayor.

Gorsuch wrote that leaving decisions about how to conduct elections during the pandemic would lead to a "Babel of decrees" and that lawmakers were better positioned to make judgments about what to do.

"Last-minute changes to longstanding election rules risk other problems too, inviting confusion and chaos and eroding public confidence in electoral outcomes," he wrote. "No one doubts that conducting a national election amid a pandemic poses serious challenges. But none of that means individual judges may improvise with their own election rules in place of those the people’s representatives have adopted."

But Kagan warned that some voters won't get to cast ballots because of Monday's decision.

"Today, mail ballots often travel at a snail’s pace, and the elderly and ill put themselves in peril if they go to the polls," she wrote. "So citizens — thousands and thousands of them — who have followed all the State’s rules still cannot cast a successful vote."

The decision comes amid a widening of the pandemic. The state reported Monday that more than 200,000 Wisconsinites have tested positive for the virus since the pandemic began. Nearly 1,800 have died, including 10 recorded on Monday.

Democrats had hoped the justices might have seen the case differently because they allowed absentee ballots that were postmarked by election Day to be counted in Wisconsin's April election for state Supreme Court.

About 80,000 additional votes were counted for that election because absentee ballots postmarked by election day were counted, rather than just those received by election day.

Hundreds of election lawsuits have been filed around the country, mostly because of the pandemic and the expansion of mail voting. Cases are headed to the Supreme Court over how absentee ballots are distributed, delivered and counted as Trump rails against the practice.

In one recent 5-3 ruling, the court blocked a judge's ruling that would have allowed curbside voting in Alabama.

That decision came just days after a 4-4 tie among the justices allowed a decision to stand that allowed ballots in Pennsylvania to be counted even if they arrived as late as Nov. 6.

In the Pennsylvania case, Roberts sided with the liberals. He wrote Monday that he voted the other way in the Wisconsin case because the lower court ruling came from a federal judge, not a state court, as it did in the Pennsylvania case.

Richard Wolf of USA TODAY contributed to this report.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.

This article originally appeared on Milwaukee Journal Sentinel: Supreme Court: Wisconsin mail-in ballots must be received by Nov. 3