By Lisa Soronen
In a 5-3 decision the U.S. Supreme Court disallowed a lower court decision to go into effect which would have allowed absentee ballots to be counted if they were received as late as Nov. 9, as long as they were postmarked on or before Election Day.
As a result, Wisconsin absentee ballots must be received by Election Day to be counted.
This decision is at odds with a recent ruling from Pennsylvania raising the same question. In the Pennsylvania case, the Supreme Court ruled 4-4, meaning that the lower court decision would stay in effect. That decision held that absentee ballots received up to three days after the election could be counted.
Chief Justice John Roberts voted with the more liberal justices in the Pennsylvania case to allow late ballots to be counted. It wasn’t clear why, because none of the justices issued an opinion, which is typical in emergency cases.
In the Wisconsin case the chief justice explained how he saw the cases as different. The Pennsylvania case involved applying the Pennsylvania constitution, which is very pro-voting, to Pennsylvania elections law. The Wisconsin case, according to the chief justice, “involves federal intrusion on state lawmaking processes.”
The justices wrote a number of lengthier opinions in Democratic National Committee v. Wisconsin State Legislature, which was issued minutes before Judge Amy Coney Barrett became Justice Barrett.
Wisconsin statutes require absentee ballots to be received by Election Day. On Sept. 21, a federal district judge extended the deadline due to COVID-19. The 7th Circuit disallowed the district court decision from going into effect pending appeal. The Supreme Court agreed with the 7th Circuit.
Justices Neal Gorsuch and Brett Kavanaugh wrote a brief concurring opinion that stated “state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules.” It is up to state legislatures to answer the “how-much-is-enough questions” related to changing election requirements to respond to COVID-19, they wrote.
Kavanaugh wrote a lengthy solo concurrence as well. He offered three reasons for why he disagreed with the district court decision. First, he pointed out that the Supreme Court “has repeatedly emphasized that federal courts ordinarily should not alter state election laws in the period close to an election—a principle often referred to as the Purcell principle.”
Second, he opined that state legislatures and not federal judges “have the responsibility to address the health and safety of the people during the COVID–19 pandemic.”
Finally, elections must have deadlines. In early September, Wisconsin mailed every registered voter an absentee ballot application. “A deadline is not unconstitutional merely because of voters’ ‘own failure to take timely steps’ to ensure their franchise,” wrote Kavanaugh.
Justice Elise Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor also wrote a longer concurring opinion.
According to Kagan, Purcell is a “not a rule but a caution” that should be applied to election changes that might “baffle and discourage voters.” Allowing more time for absentee ballots to be received wouldn’t likely do either. Kagan also expressed skepticism that courts should defer to state legislatures regarding election law: “For in that field politicians’ incentives often conflict with voters’ interests—that is, whenever suppressing votes benefits the lawmakers who make the rules.”
Kagan also pointed out that given the surge in requests for absentee ballots up until Wisconsin’s Oct. 29 ballot-application deadline and unusual mail delays, as many as 100,000 votes won’t be counted without the six-day extension. Only 284 Wisconsin mail ballots weren’t counted in the 2016 election.
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.