The U.S. Supreme Court overruled a lower federal court’s ruling and said that absentee ballots in Wisconsin’s April 7 Spring Election must be postmarked by Election Day in order to be counted. The Court did not change the April 13 deadline as the final day for counting absentee ballots.

The decision was 5 to 4, split along ideological lines with the conservatives (Chief Justice John Roberts, Justice Samuel Alito, Justice Neil Gorsuch, Justice Clarence Thomas and Justice Brett Kavanaugh) in the majority.

Kavanaugh wrote for the majority:

“Extending the date by which ballots may be cast by voters—not just received by the municipal clerks but cast by voters— for an additional six days after the scheduled election day fundamentally alters the nature of the election. By changing the election rules so close to the election date and by affording relief that the plaintiffs themselves did not ask for in their preliminary injunction motions, the District Court contravened this Court’s precedents and erred by ordering such relief. This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”

In Justice Ruth Bader Ginsburg’s dissenting opinion, in which she was joined by fellow liberal justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, she wrote:

“While I do not doubt the good faith of my colleagues, the Court’s order, I fear, will result in massive disenfranchisement. A voter cannot deliver for postmarking a ballot she has not received. Yet tens of thousands of voters who timely requested ballots are unlikely to receive them by April 7, the Court’s postmark deadline. Rising concern about the COVID–19 pandemic has caused a late surge in absentee-ballot requests.”

Ginsburg added:

“The Court’s suggestion that the current situation is not ‘substantially different’ from ‘an ordinary election’ boggles the mind. Some 150,000 requests for absentee ballots have been processed since Thursday, state records indicate. The surge in absentee-ballot requests has overwhelmed election officials, who face a huge backlog in sending ballots…

“…It is therefore likely that ballots mailed in recent days will not reach voters by tomorrow; for ballots not yet mailed, late arrival is all but certain. Under the District Court’s order, an absentee voter who receives a ballot after tomorrow could still have voted, as long as she delivered it to election officials by April 13. Now, under this Court’s order, tens of thousands of absentee voters, unlikely to receive their ballots in time to cast them, will be left quite literally without a vote.

“This Court’s intervention is thus ill advised, especially so at this late hour. Election officials have spent the past few days establishing procedures and informing voters in accordance with the District Court’s deadline. For this Court to upend the process—a day before the April 7 post-mark deadline—is sure to confound election officials and voters.”

Kavanaugh responded to the “late hour” statement by Ginsburg.

“…the dissent contends that this Court should not intervene at this late date. The Court would prefer not to do so, but when a lower court intervenes and alters the election rules so close to the election date, our precedents indicate that this Court, as appropriate, should correct that error.”

Kavanaugh added that the concerns over the late absentee ballots is unfounded:

“But even in an ordinary election, voters who request an ab- sentee ballot at the deadline for requesting ballots (which was this past Friday in this case) will usually receive their ballots on the day before or day of the election, which in this case would be today or tomorrow. The plaintiffs put forward no probative evidence in the District Court that these voters here would be in a substantially different position from late-requesting voters in other Wisconsin elections with respect to the timing of their receipt of absentee ballots. In that regard, it bears mention that absentee voting has been underway for many weeks, and 1.2 million Wisconsin voters have requested and have been sent their absentee ballots, which is about five times the number of absentee ballots requested in the 2016 spring election. Fourth, the dissent’s rhetoric is entirely misplaced and completely overlooks the fact that the deadline for receiving ballots was already extended to accommodate Wisconsin voters, from April 7 to April 13. Again, that extension has the effect of extending the date for a voter to mail the ballot from, in effect, Saturday, April 4, to Tuesday, April 7. That extension was designed to ensure that the voters of Wisconsin can cast their ballots and have their votes count.”

Rick Esenberg, the President and General Counsel for the Wisconsin Institute for Law & Liberty, said the majority decision was correct.

“Wisconsin voters will have their absentee ballots counted even if they do not arrive by Election Day, as required by state law. That’s reasonable under the circumstances,” Esenberg said. “But the U.S. Constitution does not require that the state permit them to be cast after Election Day. Wisconsin has an interest in preventing post-election ballot harvesting and the U.S. Supreme Court properly allowed Wisconsin to set its own rules on when absentee ballots can be cast.”

Assembly Speaker Robin Vos (R-Rochester) and Senate Majority Leader Scott Fitzgerald (R-Juneau) issued a joint statement praising the ruling by the U.S. Supreme Court.

“This prudent action by the United States Supreme Court addresses our concerns over ballot security in tomorrow’s election,” the legislators said in their statement Monday. “We look forward to the voting tomorrow being secure – and look forward to seeing the results come in with the rest of Wisconsin by April 13th.”

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