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  • October 27, 2020

    U.S. Supreme Court Denies Bid to Extend Mail-In Ballot Deadlines in Wisconsin

    Joe Forward


    Oct. 27, 2020 – The U.S. Supreme Court (5-3) has declined to extend Wisconsin election deadlines to give voters more time to submit their absentee ballots. The decision ends a months-long conflict between the Republican and Democratic parties.

    In a ruling issued yesterday (Oct. 26), the Court denied an application from the Democratic National Committee and the Democratic Party of Wisconsin, which argued that a lower appellate court decision should be blocked and extensions granted.

    The plaintiff-Democrats argued that – during the COVID-19 pandemic – enforcement of Wisconsin election law deadlines pertaining to voter registration and absentee ballots, among other conduct of elections, would unduly burden voters’ right to vote.

    But a majority of the U.S. Supreme Court declined to allow the requested accommodations, concluding that Wisconsin voters have had plenty of time to request and submit absentee ballots and they can always vote at the polls if necessary.

    “No one doubts that conducting a national election amid a pandemic poses serious challenges,” wrote Justice Neil Gorsuch in a concurring opinion

    “But none of that means individual judges may improvise with their own election rules in place of those the people’s representatives have adopted.”

    The decision means that municipal clerks must receive mail-in ballots by Election Day, Tuesday, Nov. 3, or they will not be counted.

    District Court Decision Triggers Appeal

    The case, Democratic National Committee et al. v. Bostelmann et al., started in the U.S. District Court for the Western District of Wisconsin.

    On Sept. 21, U.S. District Court Judge William Conley granted a preliminary injunction against state election laws and extended certain deadlines, including deadlines affecting voter registration and absentee ballots for the upcoming November general election.

    Joe Forward Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    For instance, Judge Conley granted an additional week, to Oct. 21, for online and mail-in voter registration, and extended the receipt deadline for absentee ballots to Nov. 9 (instead of Nov. 3), so long as the ballots were postmarked on or before Nov. 3.

    The respondents, including the Republican-controlled Wisconsin Legislature, filed an emergency appeal to the U.S. Court of Appeals for the Seventh Circuit, asking the appeals court to block the district court’s decision.

    Ultimately, after a detour to the Wisconsin Supreme Court, the Seventh Circuit Court of Appeals ruled (2-1) in favor of the Wisconsin Legislature. The Democrats appealed, but yesterday’s decision from the U.S. Supreme Court ends this dispute.

    “[T]he District Court changed Wisconsin’s election rules too close to the election, in contravention of this Court’s precedents,” wrote Justice Brett Kavanaugh, concurring.

    “Although the District Court’s order was well intentioned and thorough, it nonetheless contravened this Court’s longstanding precedents by usurping the proper role of the state legislature and rewriting state election laws in the period close to an election.”

    Justice Elena Kagan wrote a dissenting opinion, joined by Justice Stephen Breyer and Justice Sonia Sotomayor, concluding the public health emergency warrants extensions.

    “During COVID, the State’s ballot-receipt deadline and the Court’s decision upholding it disenfranchise citizens by depriving them of their constitutionally guaranteed right to vote,” Justice Kagan wrote.

    “Because the Court refuses to reinstate the district court’s injunction, Wisconsin will throw out thousands of timely requested and timely cast mail ballots.”

    The High Court reportedly issued the decision just minutes before the U.S. Senate confirmed Amy Coney Barrett to fill the seat of the late Justice Ruth Bader Ginsburg.

    Barrett, of Indiana, previously served as a judge for the U.S. Court of Appeals for the Seventh Circuit. Barrett was confirmed by a vote of 52-48 along party lines. Only one Republican, Sen. Susan Collins of Maine, voted against Barrett’s confirmation.

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2024 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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