By Lisa Soronen
Today's election in Wisconsin is both a presidential primary and an election of numerous judgeships, more than 500 school board seats and several thousand other positions. Per the Wisconsin Supreme Court, in-person voting will go on. Per the U.S. Supreme Court, only absentee ballots received or postmarked today will be counted.
Yesterday, Wisconsin Governor Tony Evers (D) issued an executive order suspending in-person voting until June 9. Later in the day, in a 4-2 ruling, the Wisconsin Supreme Court blocked Evers’ order, ensuring that in-person voting would occur today.
State law requires that absentee ballots be received by election day, April 7. On April 2, a federal district court ordered that absentee ballots mailed and postmarked after election day be counted if they are received by April 13. While not objecting to the April 13 extension for receipt of ballots, the Republican National Committee objected to absentee ballots mailed and postmarked after Election Day being counted.
The Supreme Court stayed the district court’s order allowing the counting of absentee ballots received after April 7. The majority of the court, in an unauthored opinion, objected to the fact that the district court made this change to the election without the Democratic National Committee asking for it only five days before 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.”
Justice Ruth Bader Ginsburg wrote a dissenting opinion joined by Justices Stephen Breyer, Sonia Sotomayor and Elise Kagan. The dissenting justices expressed concern the court’s ruling would lead to “massive disenfranchisement.”
They noted that the COVID-19 pandemic has caused a surge in absentee ballot requests and tens of thousands of Wisconsin voters were unlikely to receive a ballot by April 7. Under the district court ruling, “even if they receive their absentee ballot in the days immediately following Election Day, they could return it. With the majority’s stay in place, that will not be possible. Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own.”
The majority concluded its opinion by saying it could not stress enough that it was not “expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate.”
It is state legislatures who may have to undertake this task in the next few months.
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.