In setback for Democrats, Supreme Court won't let late mail ballots count in Wisconsin

Pete Williams
·3 min read

WASHINGTON — Wisconsin cannot count mail ballots that arrive well after the polls close under an order issued Monday by the Supreme Court, a defeat for Democrats in a battleground state.

By a vote of 5-3, the justices declined to lift a lower court ruling preventing the state from counting mail ballots that arrive as much as six days after Election Day. Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan said they would have granted the request.

Voting rights groups, the state and national Democratic parties and the League of Women Voters sued seeking to extend the deadline to accept mail-in ballots. They said the flood of absentee ballots and problems arising from the coronavirus pandemic make it harder for voters to receive their mail ballots and return them on time. Wisconsin has been especially hard hit by Covid-19, with hospitals filled nearly to capacity.

U.S. District Judge William Conley agreed and ordered the state to accept ballots that arrive up to six days after Election Day, provided they are postmarked before the polls close. But the 7th U.S. Circuit Court of Appeals blocked the order.

"A last-minute event may require a last-minute reaction. But it is not possible to describe COVID-19 as a last-minute event," the court said.

Courts are typically reluctant to change the rules as Election Day gets closer, but in asking the Supreme Court to lift the appeals court stay, the Wisconsin groups said there was no risk of confusing voters by granting their request. "The ballots of a substantial number of voters who will follow all of Wisconsin's rules will arrive after the current receipt deadline because of conditions caused by the pandemic," they argued.

Without relief from the Supreme Court, the groups said, "mass disenfranchisement of Wisconsin voters would ensue." Gov. Tony Evers, a Democrat, sided with the challengers.

But Republicans urged the court to stick with the state's existing deadline. "Wisconsin law gives voters who may experience some mailing delays multiple avenues to cast their ballots — including two weeks of in-person absentee voting — more avenues than are available in most other states," they said in court filings.

Donald Trump won Wisconsin in 2016 by less than 1 percentage point, a lead of less than 23,000 votes. Three of the last five presidential election results in the state were squeakers.

The Supreme Court reached a different result last week in allowing mail ballots to be counted in Pennsylvania if they arrive by the Friday following the election. By a 4-4 vote, the justices left a state court ruling in place that extended the ballot deadline. They did not explain their reasoning.

Chief Justice John Roberts, in a brief explanation of his vote in the Wisconsin matter, said the cases came to the Supreme Court in different postures. In Pennsylvania, state election officials were already planning to extend the deadline under the order of their highest state court, while in Wisconsin, election administrators had no such plans, because a federal appeals court had blocked a similar request.

"This case involves federal intrusions on state lawmaking processes," he said, while the Pennsylvania case "implicated the authority of state courts to apply their own constitutions."

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Justices Brett Kavanaugh and Neil Gorsuch said Wisconsin has made several changes to adapt to the pandemic, sending ballot applications to all registered voters, allowing extended time to vote and providing for drop boxes as an alternative to the mail.

"Elections must end sometime, a single deadline provides clear notices, and requiring ballots to be in by election day puts all voters on the same footing," they said.

But Kagan, writing for the three dissenters, said extending the deadline "would prevent the state from throwing away the votes of people actively participating" in the democratic process. "Protecting the right to vote in a health crisis outweighs conforming to a deadline in safer days."

The court is considering a similar deadline extension in North Carolina, and Republicans are making another run at rolling back the deadline in Pennsylvania.