Supreme Court Refuses To Extend Wis. Mail-In Ballot Cutoff

Law360 (October 26, 2020, 11:12 PM EDT) -- A split U.S. Supreme Court on Monday shot down Democrats' request to restore a six-day extension to the deadline for receiving mail-in ballots in Wisconsin, rejecting arguments that the extra time is needed in the key battleground state as COVID-19 cases soar.

In September, a Wisconsin federal judge ruled that voters should have the extra time to return their ballots amid the pandemic, finding that the state had violated the Constitution by requiring absentee ballots be returned no later than Election Day.

A divided Seventh Circuit stayed that order earlier this month, with the majority saying that Supreme Court precedent insists that federal courts not change electoral rules close to an election date. The Democratic National Committee and Democratic Party of Wisconsin urged the high court to vacate the stay, citing a "spiraling deterioration in Wisconsin's public health situation" and a simultaneous surge in absentee voting.

But the Supreme Court on Monday voted 5-3, along ideological lines, to deny the Democrats' application to vacate the stay. Conservative Chief Justice John Roberts and Justices Neil Gorsuch, Brett Kavanaugh, Clarence Thomas and Samuel A. Alito Jr. voted against the application, while liberal Justices Elena Kagan, Stephen G. Breyer and Sonia Sotomayor supported it.

Chief Justice Roberts and Justices Gorsuch and Kavanaugh each penned concurrences, with Justice Gorsuch slamming the district court for seeking to "scuttle such a long-settled tradition" of enforcing absentee voting deadlines the day of an election.

"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," Justice Gorsuch wrote.

Justice Kavanaugh joined his concurrence, adding, "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."

Meanwhile, Justice Kagan wrote a dissent, which Justices Breyer and Sotomayor joined, arguing that thousands of Wisconsin voters could get their ballots too late to return them by Election Day "through no fault of their own."

"Without the district court's order, they must opt between braving the polls, with all the risk that entails, and losing their right to vote," Justice Kagan said.

She noted that Wisconsin "is one of the hottest of all COVID hotspots in the nation." And the lack of the extension means "Wisconsin will throw out thousands of timely requested and timely cast mail ballots," she said.

"The court's decision will disenfranchise large numbers of responsible voters in the midst of hazardous pandemic conditions," she wrote.

Republican Party of Wisconsin Chairman Andrew Hitt on Monday said Democrats' attempts to get the courts to "rewrite" the state's election laws on the eve of the election have failed.

"Absentee voting in Wisconsin is extremely easy and hundreds of thousands of people have done it already," Hitt said. "Last-minute attempts to change election laws only cause more voter confusion and erode the integrity of our elections."

Meanwhile, Democratic Party of Wisconsin Chair Ben Wikler said in a statement Monday that the "most powerful rebuke to Republican judicial activism is to defeat Trump and elect Joe Biden and Kamala Harris in a landslide."

"Despite the efforts of Donald Trump, the Republican Party and partisan justices on the Supreme Court, voting remains easy, accessible, and convenient for Wisconsinites, and the Democratic Party of Wisconsin will double down on making sure that every Wisconsin voter knows how to exercise their sacred right to vote in the final eight days of this election," he said.

The Democrats sued the state's election commissioners in federal court in March, demanding that the deadlines to request and return electronic and by-mail ballots be extended for the April primary in response to the pandemic.

As the number of reported coronavirus cases was rising at the time, voters had to either remain in their homes during the April 7 primary election or risk infecting themselves or others with the potentially deadly virus, Democratic officials said in the suit.

The dispute made its way to the Supreme Court, which ruled in April that a voter's absentee ballot must be either postmarked by the day of the primary, April 7, and received by April 13. At that time, the Wisconsin Legislature had decided not to challenge the six-day extension ordered by the district court and instead asked for the election-day postmark requirement as part of the extension, according to the Democrats.

After the spring election, the Wisconsin Election Commission determined that the six-day extension had prevented the disqualification of nearly 80,000 valid ballots and hadn't led to any suspected voter fraud or other issues, the Democrats said.

On Sept. 21, U.S. District Judge William Conley ordered an extension for the general election. But the Seventh Circuit stayed that order on Oct. 8, holding that the change had come too late and election officials should be the ones making any changes.

The Democrats lodged their application to vacate the stay on Oct. 14, arguing that the situation today "even more clearly supports this relief."

Notably, the state is seeing a "continued deterioration in mail service," they said.

"And in the three weeks since the district court's preliminary injunction, Wisconsin has become one of the nation's COVID-19 'red zones,' with 'high levels of community transmission' in nearly half of Wisconsin's counties," the Democrats added.

The high court has considered several voting and elections matters and is poised to take up more as the election looms. Earlier this month, the court said it would take up petitions from Arizona's attorney general and the Arizona Republican Party, which separately challenged a Ninth Circuit finding that two state voting regulations discriminated against minority voters.

And on Oct. 5, the court temporarily reinstated South Carolina's requirement that absentee ballots be signed by witnesses, a Republican-backed measure that had been struck down by a pair of lower courts that had found the requirement would be risky for voters in the midst of COVID-19.

On Oct. 19, the high court upheld Pennsylvania's deadline extension for mail-in ballots for the upcoming election, rejecting state Republicans' qualms with the measure, which added three days for ballots to be received as long as they are mailed by 8 p.m. on Election Day in the key battleground state.

Justice Roberts noted in a concurrence on Monday that while the Pennsylvania case implicated the authority of state courts to apply their own constitutions to election regulations, the Wisconsin 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," he said.

Also on Monday, a divided Senate confirmed Judge Amy Coney Barrett, meaning she's set to join the Supreme Court in time to hear more election disputes, the ACA challenge and a slew of other major cases involving the special counsel's Russia probe, federal agencies' power and LGBTQ discrimination in foster care.

The Democrats are represented by Marc E. Elias, John Devaney, Bruce V. Spiva, Amanda R. Callais, Zachary J. Newkirk, Charles G. Curtis Jr., Michelle M. Umberger and Sopen B. Shah of Perkins Coie LLP.

The Wisconsin State Legislature was represented by Misha Tseytlin, Robert E. Browne Jr., Kevin M. Leroy and Sean T.H. Dutton of Troutman Pepper, Lisa M. Lawless, Eric M. McLeod and Lane E. Ruhland of Husch Blackwell LLP, and Scott A. Keller of Baker Botts LLP.

The case is Democratic National Committee et al. v. Wisconsin State Legislature et al., case number 20A66, in the U.S. Supreme Court.

--Additional reporting by Dave Simpson and Andrew Kragie. Editing by Jay Jackson Jr.

For a reprint of this article, please contact reprints@law360.com.

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Case Title

Democratic National Committee, et al., Applicants v. WIsconsin State Legislature, et al.


Case Number

20A66

Court

Supreme Court

Nature of Suit

Date Filed

October 14, 2020

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